Application by Fueltrac Pty Ltd [2018] ACopyT 2

COPYRIGHT TRIBUNAL OF AUSTRALIA

Application by Fueltrac Pty Ltd [2018] ACopyT 2 File number: CT 3 of 2018

The Tribunal: GREENWOOD J (PRESIDENT)

Date of decision: 30 October 2018

Legislation: Copyright Act 1968 (Cth), ss 153E, 161, 183

Cases cited: Thomas v Brown (1997) 37 IPR 207

Date of hearing: 26 October 2018

Date of last submissions: 26 October 2018

Category: No Catchwords

Number of paragraphs: 22

Counsel for the Applicants: Mr D G Eliades

Solicitor for the Applicants: Broadley Rees Hogan

Counsel for the Respondent: Ms K Downes QC and Mr B W Wacker

Solicitor for the Respondent: Crown Solicitor

COMMONWEALTH OF AUSTRALIA

Copyright Act 1968 IN THE COPYRIGHT TRIBUNAL CT 3 of 2018

application by: FUELTRAC PTY LTD (ACN 089 259 834)

BETWEEN: FUELTRAC PTY LTD (ACN 089 259 834) Applicant AND: STATE OF QUEENSLAND Respondent

TRIBUNAL: GREENWOOD J (PRESIDENT)

DATE OF ORDER: 30 october 2018

THE TRIBUNAL DIRECTS THAT:

1. The present proceedings be stayed pending the determination of all questions in issue the subject of proceedings to be commenced in the Federal Court of Australia by the present applicant. 2. These directions and the reasons in support of these directions are published from the Chambers of the President.

REASONS FOR DETERMINATION

GREENWOOD J (PRESIDENT): 1 Section 183(1) of the Copyright Act 1968 (Cth) (the "Act") provides, relevantly, that the copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, is not infringed by a State, or by a person authorised in writing by a State, doing any acts comprised in the copyright if the acts are done for the services of the State. Authority may be given under s 183(1) before or after the acts in respect of which the authority is given have been done, and may be given to a person notwithstanding that he or she has a licence granted by, or binding on, the owner of the copyright to do the acts: s 183(3). 2 Section 183(4) provides that where an act comprised in a copyright has been done under s 183(1), the State shall, as soon as possible, unless it appears to the State that it would be contrary to the public interest to do so, inform the owner of the copyright of the doing of the act and furnish that person with such information as to the doing of the act as he or she from time to time reasonably requires. 3 Section 183(5)(1) provides that where an act comprised in a copyright has been done in reliance upon s 183(1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal (the "Tribunal"). 4 Section 153E of the Act provides, relevantly, that the parties to an application to the Tribunal under s 183(5) for the fixing of the terms for the doing of an act comprised in a copyright where the act is done for the services of a State, are the State and the owner of the copyright. Section 153E(2) provides that if an application is made to the Tribunal under s 183(5), the Tribunal "is to consider the application and, after giving the parties to the application an opportunity of presenting their cases, is to make an order fixing the terms for the doing of the act". 5 Section 153E(2) seems to cast a mandatory obligation on the Tribunal "to consider" an application made under s 183(5) and after affording the parties procedural fairness, a mandatory obligation "to make" an order fixing the terms for the doing of the relevant act. 6 A question which has arisen in this preliminary application is whether the jurisdiction of the Tribunal has been engaged at all. 7 The proposition on behalf of the State of Queensland is that the jurisdiction of the Tribunal to determine the terms for the doing of an act comprised in the copyright in the relevant subject matter, is only engaged where an act comprised in a copyright has been done or exercised in reliance upon s 183(1) of the Act. The State says that if there is a question in issue as to whether copyright subsists in a work, or whether the applicant before the Tribunal is the owner of the copyright in the relevant work or whether the State has exercised a right comprised in the copyright in question in reliance upon s 183(1) of the Act, it would be necessary to first determine one or all of those questions because the jurisdiction of the Tribunal is only engaged "where an act comprised in a copyright has been done under subsection (1)": s 183(5). 8 Section 161 of the Act provides that the Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal, for determination by the Federal Court of Australia. Section 161(2) regulates the time when such a question might be raised. The question is properly raised at this stage of the proceeding. 9 As to the proceeding itself, the application is made to the Tribunal by Fueltrac Pty Ltd ("Fueltrac"). The respondent is the State of Queensland. The application is made under s 183(5) to fix the terms for the doing, by the State of Queensland, of acts comprised in the copyright, being acts said to have been undertaken by or on behalf of the State in reliance upon s 183(1). 10 Briefly, the factual background is this. Each of the following matters reflect the factual contentions of the applicant. 11 Fueltrac provides a wide range of services within the fuel and lubricants industry ranging from consulting services to price monitoring of terminal gate, wholesale and retail prices. Fueltrac has been providing retail pricing reports to a body described as the Australian Automobile Association ("AAA") for approximately 20 years. It continues to do so. It provides AAA with a monthly unleaded retail (pump price) report for all States and Territories in Australia, otherwise described as the "Fueltrac Report". Each report provides the maximum, minimum and average price for specified locations by reference to identified postcodes within the relevant location. The locations and postcode references were "precisely selected" by Fueltrac in order to provide statistically relevant information to AAA without the necessity of reporting upon all locations and all postcodes throughout Australia. In order to prepare the Fueltrac Report, Fueltrac collects retail unleaded pricing information within the relevant locations. Fueltrac has developed software that aggregates and summarises the data by reference to each location and postcode. The software produces a computer file that records the number of observations and the maximum, minimum and average retail unleaded price for each location. The computer file is then reviewed by particular identified persons within Fueltrac who "validate the entries" produced by the software. A lengthy process of data validation is undertaken by senior staff who use their Australian fuel market knowledge to assess the accuracy of the entries recorded in the computer file for each location. As necessary, the staff members use their skill and experience to review and amend what may appear to be inaccurate entries. Upon completion of the validation exercise and any necessary "cleansing of the data", Fueltrac staff export and format the data into the form of the Fueltrac Report required by AAA. The Fueltrac Report, for unleaded petrol in each location, provides the maximum price, minimum price, average price and an "observation count". Fueltrac granted AAA a non-exclusive licence to reproduce monthly average unleaded retail pricing only by means of AAA's website. For all other products, Fueltrac granted AAA a non-exclusive licence to reproduce information in graphical format, provided that actual pricing was not disclosed. Using the Fueltrac Report and with Fueltrac's licence, AAA produced a document entitled Queensland AAA Pricing Summary Unleaded Petrol (Cents per Litre) (the "AAA Report"). That document is said to reproduce the monthly pricing data including the minimum, maximum and average price for unleaded petrol recorded in the Fueltrac Report. The AAA Report provides pricing for the current calendar month and historical pricing reaching back to April 1998. The AAA Report contains a copyright notice in these terms: Copyright© FuelTrac Pty Ltd Disclaimer: FuelTrac information is collected by both electronic and manual means and is believed to be correct at time of printing. FuelTrac accepts no liability for omissions and other errors associated with the use or distribution of any information contained therein.