COPYRIGHT TRIBUNAL OF AUSTRALIA Application by Isentia Pty Limited (No 2) [2021] ACopyT 3 File number: CT 2 of 2017 CT 2 of 2018 The Tribunal: GREENWOOD J (PRESIDENT) DR RHONDA SMITH (MEMBER) MS MICHELLE GROVES (MEMBER) Date of decision: 15 October 2021 Legislation: Copyright Act 1968 (Cth), ss 10, 14, 31, 36, 136, 154, 157, 160 Cases cited: Application by Isentia Pty Limited [2020] ACopyT 2 Audio-Visual Copyright Society Ltd v New South Wales Department of School Education [1997] ACopyT 1 Copyright Agency Ltd v Department of Education of New South Wales (1985) 4 IPR 5; 59 ALR 172 Copyright Agency Ltd v New South Wales (2013) 102 IPR 85; [2013] ACopyT 1 Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109 General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1975] 1 WLR 819 IceTV Pty Limited v Nine Network Australia Pty Limited (2009) 239 CLR 458 Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia (2019) 270 FCR 645 Re Applications by MCM Networking Pty Ltd (1989) 25 IPR 597 Reference by Australasian Performing Right Association Ltd [APRA]; Re Australian Broadcasting Corporation [ABC] (1985) 5 IPR 449 Reference by Phonographic Performance Company of Australia Ltd under s 154(1) of the Copyright Act 1968 (2007) 73 IPR 162; [2007] ACopyT 1 Re Phonographic Performance Company of Australia Limited (under s 154 of the Copyright Act 1968 (Cth)) (2015) 114 IPR 316; [2015] ACopyT 3 Re Phonographic Performance Company of Australia Ltd (under s 154 of Copyright Act 1968 (Cth)) (2016) 117 IPR 540; [2016] ACopyT 2 Re Phonographic Performance Company of Australia Ltd Under Section 154(1) of the Copyright Act 1968 (Cth) (2016) 125 IPR 1; [2016] ACopyT 3 Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285 Roadshow Films Pty Ltd v iiNet Limited [No 2] (2012) 248 CLR 42 University of Newcastle v Audio-Visual Society Ltd [1999] ACopyT 2 WEA Records Pty Ltd v Stereo FM Pty Ltd (1983) 1 IPR 6; 48 ALR 91 Date of hearing: 8 - 26 February 2021, 16, 18, 23 March 2021 Category: No Catchwords Number of paragraphs: 6 Date of last submission/s: 31 May 2021 Counsel for Isentia Pty Limited: Mr C Moore SC and Ms L Thomas Solicitor for the Isentia Pty Limited: Clayton Utz Counsel for Meltwater Australia Pty Ltd: Mr J Hennessy SC and Ms F St John Solicitor for the Meltwater Australia Pty Ltd: Baker McKenzie Counsel for the Respondent: Mr R Lancaster SC, Mr R Yezerski and Ms S Ross Solicitor for the Respondent: MinterEllison COMMONWEALTH OF AUSTRALIA Copyright Act 1968 IN THE COPYRIGHT TRIBUNAL CT 2 of 2017 application by: MELTWATER AUSTRALIA PTY LTD (ABN 91 121 849 769) BETWEEN: MELTWATER AUSTRALIA PTY LTD (ABN 91 121 849 769) Applicant AND: COPYRIGHT AGENCY LIMITED (ABN 53 001 228 799) Respondent TRIBUNAL: GREENWOOD J (PRESIDENT) DR RHONDA SMITH (MEMBER) MS MICHELLE GROVES (MEMBER) date of order: 15 OCTOBER 2021 THE TRIBUNAL DIRECTS THAT: 1. Having regard to the direction made in Application by Isentia Pty Limited [2021] ACopyT 2, it be noted for the purposes of this decision, that Meltwater Australia Pty Ltd and Isentia Pty Limited have been directed to submit proposed orders to the Tribunal giving effect to the decision reflected in the Reasons for Determination explanatory of the principal determination. 2. The Tribunal's decision and reasons for determination be published from the Chambers of the President, the Hon Justice Andrew Greenwood. COMMONWEALTH OF AUSTRALIA Copyright Act 1968 IN THE COPYRIGHT TRIBUNAL CT 2 of 2018 application by: ISENTIA PTY LIMITED (ABN 11 002 533 851) BETWEEN: ISENTIA PTY LIMITED (ABN 11 002 533 851) Applicant AND: COPYRIGHT AGENCY LIMITED (ABN 53 001 228 799) Respondent TRIBUNAL: GREENWOOD J (PRESIDENT) DR RHONDA SMITH (MEMBER) MS MICHELLE GROVES (MEMBER) date of order: 15 OCTOBER 2021 THE TRIBUNAL DIRECTS THAT: 1. Having regard to the direction made in Application by Isentia Pty Limited [2021] ACopyT 2, it be noted for the purposes of this decision, that Meltwater Australia Pty Ltd and Isentia Pty Limited have been directed to submit proposed orders to the Tribunal giving effect to the decision reflected in the Reasons for Determination explanatory of the principal determination. 2. The Tribunal's decision and reasons for determination be published from the Chambers of the President, the Hon Justice Andrew Greenwood. REASONS FOR DETERMINATION GREENWOOD J (PRESIDENT), DR RHONDA SMITH AND MS MICHELLE GROVES: 1 The Tribunal has today published a determination in the applications by Isentia Pty Limited ("Isentia") and Meltwater Australia Pty Ltd ("Meltwater"): the "principal determination". The principal determination is substantial, comprising 289 pages. The reasons explanatory of the determination contain a great deal of confidential information. Accordingly, the principal determination will not be published until the parties have had an opportunity to identify those parts of the principal determination that are to be redacted consistent with the confidentiality protocol adopted for the applications. 2 The principal determination addresses the authorities which are recited on the front page of this decision. 3 For all of the reasons set out in the principal determination, the Tribunal has determined that a licence be granted to each applicant on the terms and conditions proposed by each applicant first, as to the charges proposed by each applicant and, second, as to the conditions proposed by each applicant and to that extent we have so specified for the purposes of s 157(6B)(a) of the Act, subject to, these matters: (a) the term of the licence shall be (redacted) years (that is, (redacted) months from the date of the making of final orders rather than (redacted) months as proposed by the applicants); (b) the licence shall not contain a provision for (redacted); (c) the licence is to either contain a condition by which CA in its capacity as licensor acting on behalf of its publisher principals is (redacted); and (d) the press clip rate shall be (redacted) rather than (redacted). 4 The licence proposals of the applicants are these: as to Isentia, the Proposed Licence at Annexure A to the Second Further Amended Statement of Points in Support of the Applicant's Case filed on 1 December 2020; as to Meltwater, the Proposed Licence annexed to Meltwater's Further Amended Application filed 18 September 2020 as amended by [49A] of the Further Amended Statement of Points in Support of the Applicant's Case filed 1 December 2020. 5 In the principal determination, the applicants were directed to submit formal orders giving effect to the Tribunal's decision. 6 In due course, the formal orders in each application will be published and, in due course, the principal determination will be published with appropriate redactions so as to protect the confidentiality of particular information. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Determination herein of the Honourable Justice Greenwood (President), Dr Rhonda Smith (Member) and Ms Michelle Groves (Member), Australian Copyright Tribunal Associate: Dated: 15 October 2021