COPYRIGHT TRIBUNAL OF AUSTRALIA

Copyright Agency Limited v University of Adelaide (No 2) [2000] ACopyT 6

COPYRIGHT AGENCY LIMITED v UNIVERSITY OF ADELAIDE and others

CT 4 of 1997

TRIBUNAL:              FINKELSTEIN DP

DATE:                        14 JUNE 2000

PLACE:                      MELBOURNE

COMMONWEALTH OF AUSTRALIA

COPYRIGHT ACT 1968

RULING (No 2)

FINKELSTEIN DP

1                     On 2 February 1999 the Tribunal fixed the amount of equitable remuneration to be paid by the respondent universities to Copyright Agency Limited (CAL), a collecting society acting on behalf of the copyright owners, under their statutory licences to copy copyright literary material: Copyright Agency Limited v University of Adelaide (1999) 42 IPR 529.  The parties were unable to agree on a sampling system in accordance with which the number of licensed copies of copyright material was to be assessed.  Accordingly, following a further hearing the Tribunal ordered that there be an interim sampling system undertaken by A C Nielsen pending the determination of a final system:  Copyright Agency Limited v University of Adelaide (1999) 45 IPR 383.

2                     The parties were able to reach agreement on most aspects of the interim sampling system and the Tribunal made an interim order implementing that system for the purpose of assessing the number of licensed copies of copyright material made by the universities for the period 1 January 2000 to 31 December 2000.  However, the sampling system was not complete.  It adopted those parts that were sufficient to enable sampling to commence.  It was anticipated that other aspects would be dealt with at a later point.

3                     The parties also reached agreement on additional elements of the sampling system.  However, they cannot agree whether the system should incorporate procedures to be followed in the processing of data that has been collected from the universities. 

4                     Before resolving this dispute it is necessary first to mention a preliminary point that has arisen.  The initiating application sought a determination by the Tribunal of the amount of equitable remuneration payable to CAL by the universities for licensed copying and of the sampling system to be used for the purpose of assessing the number of licensed copies made.  As I have said the amount of equitable remuneration has been determined.  Different rates have been fixed for different types of copying.  In each case the rate is on a per page basis.  Pursuant to s 135ZW of the Copyright Act 1968 (Cth), equitable remuneration is payable for each licensed copy made by the licensee and hence the sampling system to be determined is one that permits the determination of the number of licensed copies that have been made. 

5                     Recently the parties entered into a remuneration agreement, which is to remain in force until at least 31 December 2002, the effect of which is that the equitable remuneration to be paid for licensed copying is $25.00 per annum for each enrolled student.  When I was told of this agreement I invited the parties to consider whether the Tribunal retained jurisdiction to determine a sampling system.  My concern was that once it had been agreed that equitable remuneration was to be paid at an agreed rate that did not depend upon the number of licensed copies made, no purpose would be served by proceeding with the application.

6                     The parties were united in submitting that the application should proceed.  After hearing their submissions I am satisfied that it should proceed and that the Tribunal does have the power to deal with it.  My reasons are straight forward.

7                     An educational institution, such as a university, can make licensed copies while there is in force a sampling notice:  s 135ZW.  Each respondent has served such a notice.  It is the existence of those notices which empowers the Tribunal to determine equitable remuneration and a sampling system.

8                     The rate of equitable remuneration that has been determined may remain in force beyond the life of the remuneration agreement.  The amount of equitable remuneration that is payable will remain in force until the sampling notices are revoked.  Until that event occurs one cannot say that a sampling system is not required.  Indeed it is possible that a final sampling system will be needed to enable the calculation of equitable remuneration to be paid upon the expiry of the remuneration agreement.

9                     I also note that the purpose of a sampling system is not only to determine the number of licensed copies of copyright material that have been made.  Section 135ZW(3) provides that a sampling system may be determined to assess “any … matters that are necessary or convenient to be assessed by use of a sampling system”.  Even if the parties ultimately wish to extend the term of the remuneration aspect, a sampling system will provide them with valuable information for the purpose of agreeing on a rate of remuneration if the current rate is to be reversed.  As Burchett P said in Copyright Agency Limited v University of Adelaide 45 IPR 383 at 385

“Historically, the surveys, pursuant to agreements between the parties, aimed at the assessment of 3-year rolling averages, and the Nielsen model 2 would continue that process.”

The survey enables a reliable estimate of copying to be made.  Historically the surveys were undertaken to assess the amount of copying on three-year averages.  The information thus obtained from a survey would permit the parties to reassess their position at the end of the remuneration agreement and to decide whether they wish the agreement to continue and, if so, on what terms.  I am satisfied that there is utility in determining a sampling system.

10                  The sampling system that is currently in place is principally concerned with the manner in which data is collected from the universities.  Data is collected by the use of survey forms that are completed by university staff when copying takes place.  The information contained in the survey forms must be processed.  The interim sampling system does not establish procedures to be followed for the processing of the information. Such procedures do exist.  They have been employed by CAL and A C Nielsen for many years under the sampling systems that had been in place by agreement.  Now the question arises whether the processing procedures, with or without amendments, should be formally incorporated into the interim model.

11                  The universities certainly wish to have the processing protocol (with certain amendments) incorporated.  For its part CAL objects to this course saying that it is unnecessary especially because we are presently only concerned with an interim system. 

12                  There is force in CAL’s submission but, in the end, I think it is prudent to adopt as complete a sampling system as possible.  First, there have been a number of areas of disagreement between the parties regarding how sampling should be conducted.  Further disputes will be avoided if the procedures are fixed by order.  Second, the task of determining the final sampling system will have to be undertaken eventually.  The greater the detail that is included in the interim system the easier will be the task of determining the final system. 

13                  As it turns out there are only three aspects of the processing protocol which the universities say should be changed.  The first suggested change concerns the ability of CAL to alter the processing procedures.  At present, cl 2.5 of the protocol reads:

“The rules set out in this document must remain relevant and up to date.  Amendments and adaptations may be required from time to time to reflect and respond to any new issues arising from the data collected or the survey.”

The universities complain that this leaves CAL with a free hand to implement changes, some of which may not be acceptable to them.  On the other hand, the universities recognise that it might be necessary for changes to be made to the protocol.  The problem is in the method of making changes and in the protection of the universities’ position. 

14                  Doing the best I can, I believe that the interests of all parties will be satisfied if cl 2.5 were modified by the addition of the following sentences to the end of the existing cl 2.5:

“CAL should notify the universities of any proposed amendment or adaptation three days before its adoption.  If within a further three days the universities do not object to the proposed amendment or adaptation, it may be adopted.  If objection is taken, the amendment o adaptation should be referred to the Tribunal to determine whether it should be implemented.”

15                  The second issue concerns the list of excluded copying that appears in the protocol.  This is a list of copying material in respect of which, for one reason or another, equitable remuneration is not payable.

16                  The universities make no complaint about the items included in the list.  Their concern is that the list is incomplete.  They wish to have added to the list two further categories of copying. 

17                  Section 182A of the Copyright Act provides that copyright held by the Crown is not infringed by making or reproducing a copy of a prescribed work.  ‘Prescribed work’ is defined to include an Act, an instrument made under an Act, and a judgment, order or award of a court or Tribunal established by or under an enactment.

18                  Section 135ZG provides that copyright in a literary or dramatic work is not infringed by making copies of no more than two pages of the work or, if the work is more than 200 pages, by making copies of not more than 1 per cent of the total number of pages, if the copying is carried out at the premises of an educational institution for the purposes of a course of education provided by the institution.  The exception does not apply to the making of a copy by the same person of any part of the same work within 14 days after the day on which the previous copy was made:  s 135ZG(4).

19                  The universities seek to have included in the list of exclusions material that would not constitute an infringement of copyright by reason of the foregoing two provisions.  CAL objects to this inclusion.  One basis for its objection is that the sampling system is not intended to provide a precise calculation of each instance of copying.  Overall a figure which is a reasonable approximation will be produced.  That this is so does not, in my view undermine the desirability of developing a sampling system which will provide the most accurate estimation of the amount of copying that has taken place.  It is true that there must be a balance struck between the amount of work to be undertaken in the sampling process and the cost involved.  The more sophisticated the sampling system the more accurate will be the conclusions drawn from it.  But this will be at a cost, and that cost may not justify the result or benefit when something less sophisticated suffices.

20                  In the case of the two additional exclusions suggested there are two obvious difficulties.  First, in some jurisdictions the Crown has assigned to private publishers its copyright to reproduce legislation, subordinate legislation and decisions of courts and tribunals.  The statutory exemption will not operate in respect of copying of these works.  Second, it may not be possible to determine from the survey forms whether a copy falls within s 182A or s 135ZG.

21                  I am prepared to allow the addition of the two further exemptions because I am not satisfied that there may be much additional work involved.  I will leave it to the parties to formulate the precise words to be adopted, including any consequential changes that should be made to the protocol.  However, it should be made clear that copies will only fall within the new exemptions if that is obvious from the information found in the survey forms.  The survey forms will not be altered to collect further information.  Nor will it be appropriate for CAL or A C Nielsen to contact university staff to elicit further information so that a decision can be made as to whether a copy falls within the new exemptions.  If the information that is currently supplied is not sufficient for that purpose, then it is to be assumed that the copy does not fall within an exemption.

22                  The respondents should bring in short minutes of order to reflect these reasons.

Associate to the Deputy President:

Dated:  14 June 2000