FEDERAL COURT OF AUSTRALIA

Wilson v Australian Copyright Council [2001] FCA 394

PAUL WILSON v AUSTRALIAN COPYRIGHT COUNCIL

N 1146 OF 2000

EMMETT J

23 MARCH 2001

SYDNEY

THE COURT ORDERS THAT:

1.  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant, Mr Paul Wilson, is the owner of copyright in a work that exists in hand writing form comprising 24 pages (“the Work”).  The original manuscript of the Work is in evidence before me.  Mr Wilson claims in the proceeding that his copyright in the Work has been infringed by the respondent, the Australian Copyright Council (“the Council”).  Mr Wilson commenced the proceeding by filing an application and statement of claim. Shortly after Mr Wilson commenced the proceeding, the Council moved the Court for summary dismissal of the proceeding on the basis that the statement of claim that was then filed was embarrassing and disclosed no good cause of action.

2                     On 15 December 2000 I ordered that the statement of claim be struck out but gave leave to Mr Wilson to file and serve an amended application and an amended statement of claim no later than 2 February 2001.  The Council’s motion for summary dismissal of the proceedings was stood over part heard.   The Council was also directed to file and serve any affidavit intended to be relied on in support of its motion by 16 February 2001.  On 20 January 2001, Mr Wilson filed an amended application and an amended statement of claim. On 16 February 2001, an affidavit of Carmel Pam Whiting was filed on behalf of the Council.

3                     When the matter came back before me for directions on 15 December 2000, I indicated to the parties that I did not regard the amended statement of claim as satisfactory. However, I indicated to the parties that I would be prepared to give the matter an early final hearing, rather than incurring further costs and delay by giving Mr Wilson the opportunity of a further attempt at re-pleading.  Mr Wilson appears in person and, as I understand the position, has not had the advantage of any legal advice in connection with the proceeding.  While I considered both the original statement of claim and the amended statement of claim to be embarrassing, it did appear to me that there could be the germ of a cause of action in the allegations made by Mr Wilson.

4                     In essence, Mr Wilson alleges that on 30 August 2000 the Council, through its employees or officers, made unauthorised photocopies of the Work.  In his amended application, he seeks various orders, the language of which is sometimes difficult to comprehend.  Order 1 in the amended application is as follows:

“1.       An order that the respondent whether by itself, its servants, agents or otherwise howsoever:

(a)        return any and all copy or parts of said works in theirs or anyone else’s possession, stop the re-reading, re-using, destroy all hard copy facsimile or parts of and all other useable type of copying or photocopying said works,

(b)        be restrained from again any more infringing the applicant copyright by reproducing and using said works,

(c)        be restrained by way of injunction to prevent disclosure at all,

(d)        be properly reversed to the applicant, if applicable, to be restrained, to trade in or enter into commercial arrangement or make monetary profit, cash money and similar payment and reward or barter or give non gratis or use financially in respect to all a device or any part of the essential said object of any act comprised in the Copyright Act in the work of the said copyright.”

Orders 2, 3, 4 and 5 seek orders relating to damages and loss, together with interest. 

5                     Mr Wilson gave oral evidence concerning the circumstances that he says give rise to infringement of copyright in respect of the Work.  He says that on 30 August 2000, following inquiries that he had made at the Redfern Legal Centre, he telephoned the Council and spoke to a man.  He asked about copyright in relation to his Work and, he says, gave a full description of the Work.  After about ten minutes the man told him to send the Work in to the Council.  Mr Wilson told the man that he did not wish to send it by mail but that he had to show it in person.

6                     Mr Wilson says that later on that day he went to the office of the Council at Chalmers Street, Redfern.  He rang the bell and was admitted by Ms Whiting.  Mr Wilson said that he asked to speak to the man to whom he had spoken on the phone earlier that morning.  He handed the original of the Work to Ms Whiting who took the Work and said that she would go and “show the solicitor”.  Mr Wilson asked if it would be possible to have a copy made of the Work.  Ms Whiting did not reply but left Mr Wilson and went up the stairs, within the office.  She came back after three or four minutes and, according to Mr Wilson, said that the solicitors were “busy at the photocopying machine”.

7                     Ms Whiting went away again.  In the meantime, a man in the office gave Mr Wilson an information sheet entitled, “Quotes & extracts: copyright obligations”.  Mr Wilson produced $6.00 cash in payment for that information sheet and he was given 50c change, and a receipt for $5.50 by Ms Whiting. 

8                     Ms Whiting then asked Mr Wilson to write a letter “to the solicitor”.  She gave him a pen and a piece of paper.  The piece of paper was on CCH Australia Ltd letterhead.  Ms Whiting then went away again and Mr Wilson commenced to write on that sheet of paper.  When she came back, Mr Wilson was still writing.  He said that Ms Whiting put the original of the Work on a table as he continued to write. 

9                     When he finished writing, Mr Wilson handed to Ms Whiting the sheet of paper on which he had written.  Ms Whiting read what he had written.  According to Mr Wilson, Ms Whiting then said that the solicitor had told her that the only help they could give him was to give him another information sheet. 

10                  Mr Wilson then asked Ms Whiting, “What about the photocopy?”  She then picked up a photocopy of the Work which at that stage was lying face down on a table and showed it to him.  Mr Wilson said, “This is useless, how come you made a copy?”  Ms Whiting stapled the copy and handed it to Mr Wilson, who put it into a plastic bag.  According to Mr Wilson Ms Whiting then took another copy of the Work from a wastepaper basket under a desk and handed it to him.  Mr Wilson said, “This is just as useless”.  Ms Whiting then took that copy back and began to staple it, saying “You could put them together and make one good copy”.  Mr Wilson stopped her from stapling.  Ms Whiting then put the second copy into Mr Wilson’s plastic bag. 

11                  After that, Ms Whiting handed to Mr Wilson a second information sheet, entitled “Writers & Copyright”.  Mr Wilson asked if he had to pay for the second copy of the Work.  Ms Whiting said that he would get the second copy of the Work and the second information sheet free.  Ms Whiting then began making operations on a calculator.  Mr Wilson told her that the cost of photocopying 24 pages was $4.80.  He repeated that at least twice.  He then handed her $5.00.  Ms Whiting then altered the receipt that she had given him by adding to it the reference to $5.00 for photocopying 24 pages.  She then made a copy of the receipt on a machine that was near where they were standing.  She handed the original receipt to Mr Wilson, who left saying that she could “keep 20 cents tip”.

12                  Evidence was given by Ms Whiting concerning the circumstances of the events that occurred on 30 August 2000.  Evidence was also given by other employees of the Council, including Ms Libby Baulch, the Council’s executive officer, and Ms Stella Collier, the Council’s office manager.  The evidence of the employees of the Council is generally consistent, although there are some areas where it is inconsistent.  Either the evidence is internally inconsistent, or inconsistent with the evidence of other witnesses.  However, the evidence generally accords with the account of Mr Wilson’s recollection which I have just set out.  There are, however, some inconsistencies with Mr Wilson’s recollection.

13                  Generally the thrust of the evidence given on behalf of the Council is to be found in the affidavit of Ms Whiting.  She confirms that she let Mr Wilson into the Council’s office.  According to her version he said:

“Yesterday I called the Council and spoke to a gentleman who told me I could come here to get advice on my manuscript.  I want a lawyer to go over it with me and to check that I can use the quotes and extracts included in it.”

Ms Whiting said she replied to the following effect:

“We don’t normally give advice in person.  You will need to leave your manuscript for our lawyers to look at and they will contact you with their advices.”

14                  According to Ms Whiting, Mr Wilson said that he did not want to leave the original of his manuscript with the Council.  Ms Whiting said:

“You could photocopy your manuscript and send it to us by post or facsimile with a covering letter setting out what you want to know.” 

Mr Wilson said:

“I don’t have access to a photocopier.  I should be able to speak to a lawyer now, especially as I rang up yesterday.”

Ms Whiting then said:

“I will see what the lawyers can do for you.”

15                  According to Ms Whiting she then went to Mr Ian McDonald, one of the Council’s employed lawyers, and explained Mr Wilson’s situation to him.  Mr McDonald suggested that the Council could photocopy Mr Wilson’s manuscript at 20 cents per page and that he could leave the copy and a covering letter setting out the advice that he wanted from the Council.  Ms Whiting returned to Mr Wilson after a few minutes.  She accepted that during the time of her absence, if she had chosen to, she would have had time to make a copy of the Work. 

16                  Ms Whiting said that she said to Mr Wilson:

“I’ve spoken to one of our lawyers.  He has suggested that if you like we could photocopy your manuscript for 20 cents per page and you could leave the copy here with a covering letter telling us what you’d like advice on.  Our lawyers could then get back to you about your manuscript.”

17                  Ms Whiting said that Mr Wilson then said:

“All right, you make the photocopies I’ll pay for them and write a covering letter.”

18                  Ms Whiting said that she gave Mr Wilson a pen and paper and while he wrote, she went upstairs to copy the Work.  She said that the only machine capable of photocopying downstairs is a facsimile machine that can be used for making single copies, but that the policy of the Council is not to use that machine for making bulk copies.  She said that she tried twice to photocopy the manuscript of the Work.  The first time she put the manuscript through the automatic feeder on the photocopier.  The second time she photocopied the Work manually. 

19                  Ms Whiting says that while she was at the photocopier Libby Baulch and Stella Collier both came up to her, although not at the same time.  Ms Baulch asked what she was doing. Ms Whiting explained what had happened so far in her discussions with Mr Wilson.   When Ms Collier approached, Ms Whiting asked how she could “get a decent copy” of the Work.  Ms Whiting told Ms Collier she had tried both manually and with the automatic feeder. Ms Collier said she did not think that any better copy could be made.

20                  Ms Whiting said that she showed Ms Baulch the original of the Work.  Ms Baulch looked briefly at the front page, flicked through the rest of the document and handed it back to Ms Whiting.  Ms Baulch then said words to the following effect:

“I think you should stop trying to copy Mr Wilson’s manuscript and not charge him for the illegible copies which you have already made.  Instead offer him two of our information sheets which may answer his questions: ‘Writers & Copyright’ and ‘Quotes & extracts: copyright obligations’.  Tell him he can either buy those from us now or access them on our website.”

21                  Ms Whiting went back downstairs to Mr Wilson, having been away for about five or ten minutes.  She said that she showed him the illegible photocopies and gave them to him along with his original manuscript.  She denies that she took a copy from beneath a desk. 

22                  Ms Whiting agreed that Mr Wilson said “The copies are useless.”  She asserts that she put both copies on the table and said:

“Here is your manuscript and the copies I have tried to make of it.  As you can see I haven’t been able to make a legible copy.  We won’t charge you for the illegible copies.  I think some of our information sheets might help you.  There are two in particular – ‘Writers & Copyright’ and ‘Quotes & extracts: copyright obligations’.  You can buy them now if you like or you can get them on your website.  Sorry, I can’t help you more than that.”

Mr Wilson replied:

“I don’t have time or know how to use a computer, so I want to get the information sheets now.  You should be able to help me more than this.  I am going to pay for the photocopying you’ve done anyway.”

23                  Ms Whiting was unclear as to whether the two information sheets were given to Mr Wilson together or separately.  Ms Whiting said that she told Mr Wilson he did not need to pay for the photocopying, but he insisted.  She said that she told him the photocopying was 25 pages at 20 cents per page and came to $5.00.  In that regard, her recollection is clearly faulty, having regard to the note that she made on the receipt.  She said that Mr Wilson gave her $5.00 for the photocopying and a further $5.50 for one of the information sheets.  Again, it seems likely that Ms Whiting’s recollection is not entirely accurate in that regard.  She did, however, recall that Ms Collier had given some change for $6.00 when that amount was produced by Mr Wilson.

24                  Mr Wilson says that, on the following day, he spoke to Ms Whiting by telephone and told her that she had taken an illegal copy of the Work.  He then spoke to Ms Baulch, who told him that she was the Chief Executive and that he should write a letter to the Council if he wished to make a complaint.  He asked Ms Baulch who the directors of the Council were.  Mr Wilson claims that she said she was a director and that she would handle it.  Ms Baulch, however, denies that she was a director or that she said she was a director of the Council.  Mr Wilson also said that he asked Ms Baulch: “How come the man conned me into coming down to the Council yesterday?”  He said that he asked her who her superiors were but she would not tell him. 

25                  Mr Wilson claims that he spoke to the police on 4 September 2000 but was told that the subject matter of his complaint was not within their jurisdiction. 

26                  On 7 September 2000, Mr Wilson went back to the office of the Council in Chalmers Street where he again saw Ms Baulch.  He handed to her a two page handwritten letter bearing the date 5 September 2000.  The letter is addressed as follows:  “To the Chairman, Dear Sir, the chairperson of Australian Copyright Council”.  Mr Wilson said that after some discussion, during which Ms Baulch asked him to leave or she would call the police, Ms Baulch made a marking at the foot of the second page and wrote “received 7/9/00”.  The marking does not look like a signature and Ms Baulch in effect acknowledged that she deliberately did not put her signature on the document. Mr Wilson asked her to make a copy of the document.  That she did.  She handed the original back to him and kept the copy. 

27                  Ms Baulch said that in September 2000 she was on vacation as was most of the office, because of the Olympic Games in Sydney.  During that time she was in Italy.  She said that she did not regard the letter from Mr Wilson as one of priority and therefore had not sent it to the chairman of the Council upon its receipt in early September 2000.

28                  Mr Wilson said that after making some further inquiries he subsequently spoke to Mr Peter Banki, who was the Chairman of the Council.  Mr Banki told him that he had not received the letter of 5 September 2000 and that he would find out about it.  Mr Wilson told Mr Banki that he had asked Ms Baulch who was the man he had spoken to on the morning 30 August 2000 and that she had finally told him that his name was Ian McDonald.  Mr Wilson said that Mr Banki said “Hmm” in a knowing tone.  Mr Wilson then told Mr Banki about the copy of the Work which he claimed had been under the desk on 30 August 2000.  Mr Banki asked him where he had been sitting at the time.  Mr Wilson told Mr Banki that Ms Whiting had gone upstairs to make a copy of the Work.  Mr Wilson told Mr Banki that he wanted to get back any copies of the Work that had been made.  Mr Banki said that he “would fix it”. 

29                  When he had not heard from Mr Banki, Mr Wilson delivered to Mr Banki on 18 September 2000 a letter bearing the date “13 September 2000”.  The letter is handwritten and is addressed to “Peter Banki”.  It has a date but the date is at the foot of the letter.  Mr Wilson subsequently received a letter from Mr Banki dated 19 September 2000 saying as follows:

“I refer to our telephone conversation on 14 September 2000 and the letter you delivered to my office yesterday.

As I indicated to you on the telephone, I will make inquries regarding the matters we discussed.  I have already contacted the Council and I expect shortly to receive a copy of your letter to the Council together with a report on the matters about which you complain.

In due course, I will respond to you in my capacity as Chairman of the Council.”

30                  During her vacation in Italy, Ms Baulch was contacted concerning the matter. With the use of a laptop which she borrowed, she composed a draft response to Mr Wilson’s letter of 5 September 2000.  She sent that draft by email to Ms Collier.  On 22 September 2000 Ms Collier sent an email to Mr Banki saying:

“Libby has sent me the following letter.  Once you have looked over it and made any changes, I will print it out on ACC letterhead and send it to you along with a cheque for $10.50 to be signed by you.  Please contact me on 9699 3247 if there are any problems with this.”

The suggested text of the letter to Mr Wilson was then set out. 

31                  Mr Banki made some alterations to the draft.  The first paragraph of the draft was as follows:

“I am replying to your letter to me as Chairman of the Australian Copyright Council dated...”

Mr Banki amended that paragraph so as to read as follows:

“Further to my letter dated 19 September 2000, I am replying to your undated letter to me as Chairman of the Australian Copyright Council.”

32                  By this stage a copy of the letter of 5 September 2000 had been delivered to Mr Banki.  It is not entirely clear which letter Mr Banki intended to refer to, since both of the letters from Mr Wilson are dated.  It may be that the copy of the letter of 5 September 2000 was so illegible that the date was not discernible.  The copy that was in Mr Banki’s possession is barely legible and the date is certainly almost indecipherable.

33                  Another alteration that was made by Mr Banki to the draft was to delete the following sentence:

“I have enclosed a cheque for $10.50, refunding you the money you paid the Council”.

34                  A letter was finally sent to Mr Wilson on the letterhead of the Council, signed by Mr Banki, saying as follows:

“Further to my letter dated 19 September 2000, I am replying to your undated letter to me as Chairman of the Australian Copyright Council.

As I think you are aware, the Council is a non-profit, non-government, organisation.  Its role includes providing information and advice about copyright.  It receives some government funding, but the majority of its income is from sales of its publications and seminars.  Despite its limited resources, the Council provides a large range of information for free on its web site.  For people who do not have access to the internet at home, work or through their local library, the Council also provides information in printed form for a small fee.

In some cases, the Council is able to provide free legal advice.  This service is primarily for professional creators and arts organisations, in relation to issues not addressed in the Council’s information sheets.  The Council assesses each enquiry to determine what assistance, if any, it can provide. The Council receives a large number of enquiries (more than 10,000 a year), and does not have the resources to provide assistance in relation to each enquiry.

I understand that you initially contacted the Council by telephone about an enquiry you had.  I understand that you were asked to send some information about your enquiry, so the Council could assess what, if any, assistance it could provide to you.  Instead of sending the material, you came to the office and asked the Council’s staff to photocopy it for you.  This is is [sic] not a service the Council usually provides, but the staff members, in an effort to assist you, photocopied the material for you.  The photocopies of the material you brought to the Council were given to you, and the original material was returned to you.

The material you brought to the Council was assessed by the Executive Officer, who determined that the Council could assist you by referring you to the information contained in two of the Council’s information sheets.  I understand that these two information sheets were provided to you.  I also understand that you paid for one of the information sheets and for the photocopies that were made by the Council’s staff and given to you.  The Council provided the second information sheet for free.

I understand that you have not found the information in the information sheets provided by the Council helpful.  I am sorry that this is so, but unfortunately the Council is unable to assist you any further.

If you need legal advice, I suggest you contact the Law Society for information about solicitors in private practice with expertise in copyright law.”

35                  The question that I have to decide is whether, on the balance of probabilities, there was an infringement of the copyright that Mr Wilson has in the Work.  If I accept the version of the events of 30 August 2000 deposed to by Ms Whiting, it is clear that there was an express authorisation to make the copies, or at least a copy.  That authorisation would carry at least implied authority to make a legible copy.  The original copies that were handed to Mr Wilson are in evidence.  They indicate that there were difficulties with the photocopying.  The pages clearly did not go through the photocopier evenly, such that considerable parts of the words towards the margins have not been reproduced.  Some pages are so faint that they are quite illegible.

36                  Ms Whiting said that the reason that she made the second copy was because of the problems that she had had with the first copy, namely that margins were cut off and the photocopy was faint.  The original handwriting is legible, but it is written in several colours, some of which may not photocopy adequately without adjustment to the photocopier.  The handwriting on the original of the Work goes from the very edge of each page to the opposite edge.  There are, in effect, no margins.

37                  Mr Wilson does not say that he observed any copies being made at all.  He has no knowledge of any copies other than the two that are in evidence.  He says, however, that, having regard to several matters, an inference should be drawn that Ms Whiting, Ms Baulch and Mr McDonald agreed amongst themselves to make copies of the Work to be retained by them for their own benefit.  He says that when each of them had seen the Work, they would have been so impressed that they would want to keep a copy of it and to make use of it.

38                  I must say that, of the material that I have read, that strikes me as unlikely.  At the moment I have made an order that the contents of the Work not be disclosed.  However I propose to read several short passages by way of indicating the nature of the Work.  The first page begins:

“Concept

What it is is the product of the business what happen, abstract plan, blueprint, framework handbook, project of something design, business card, how happen, a thing conceived collecting gathering a thought by pattern procedure, what do, taken in to conceive a general notion name.  What it is, mental product.  How happen, generalising an idea of a class of objects combining elements into the defined of one.  What happen, a general understanding delivered from specific objectives, creativities, my way is what do produce clear development program…”

39                  I have to confess that I do not understand the material.  The second page begins:

“Idea

Power to change lives, mould destinies, revolutionise the way we live, almost any product, the general notion signify any mental product of mental apprehension or activity, purpose of action, limited only by imagination.  Preliminary planning to turn into a project workout, remember improve with time, effort, experience.  Light one at start hard to find, keep, hard to imitate, easy to definite, easily stolen, lost.”

40                  I do not consider that it is likely that any of Ms Whiting, Ms Baulch or Mr McDonald if they read that document, would regard it as something that they would want to keep or take for themselves. 

41                  Mr Wilson contended that I should draw an adverse inference concerning the activities of the employees of the Council, having regard to the fact that the letter of 5 September 2000 was not sent immediately to Mr Banki.  He also relied on an assertion that the money that he paid was not banked immediately.  The first matter is explained by Ms Baulch.  She said that she did not regard the matter as having any priority, and she decided to leave it until after her return from vacation.  The second is a misapprehension on the part of Mr Wilson in relation to his reading of the alterations that Mr Banki made to the draft letter.  It is clear that Ms Baulch was suggesting to Mr Banki that the Council refund the $10.50 that Mr Wilson had paid, having regard to his dissatisfaction with the service that he had received or the service that he did not receive.  Mr Banki, on the other hand, decided that it was not appropriate to make the refund.  There is no basis, however, for concluding that the money that Mr Wilson paid was not dealt with in accordance with the ordinary procedures of the Council.

42                  Mr Wilson also contended that inferences of wrongful copying should be drawn by reason of the inconsistencies in the evidence given by the employees of the Council.  Ms Collier did indicate that her evidence was given after she had had a discussion with the other witnesses, endeavouring to work out what had happened.  Certainly the recollections of the witnesses were vague and a number of answers given to questions put by Mr Wilson were “I don’t recall”, or “I do not remember”.  It is, perhaps, not surprising that recollections are vague, notwithstanding that it is only a matter of 6 or 8 months since the events in question.

43                  For Mr Wilson of course, it was a matter of moment, and his recollection of the sequence of events is therefore likely to be more reliable than those of the witnesses.  I do not consider that any of the witnesses was deliberately telling an untruth.  I accept that the employees of the Council endeavoured to give honest recollections of what had happened, although the fact that there was some discussion amongst them does detract from the reliability of their evidence as independent recollection. 

44                  As I said, I accept Mr Wilson gave his evidence honestly.  It differs from the evidence of the Council’s employees in some respects.  One notable difference relates to the second copy of the work and whether it was taken from a waste paper basket under a desk.  I do not consider that Mr Wilson fabricated the incident.  However, I do not draw any sinister inference.  Ms Whiting clearly regarded the copy as worthless.  She may well have intended to discard it but retrieved it when Mr Wilson asked for “the copy”.

45                  I accept that Mr Wilson believed that he had a cause for complaint.  The real thrust of his complaint, however, seems to be that he was told on the telephone that if he went down to the office he would be given some advice by a lawyer.  It seems that he felt frustrated and angry when he arrived and that he was told that the practice of the Council was not to give face to face advice in any circumstances, and that it is only on several days a week that lawyers are available to give any advice at all. 

46                  It may be also that Mr Wilson was very concerned with the fact that copies were made of the Work.  I am prepared to accept that he does not believe that he authorised copies to be made.  On the other hand, he himself said that he asked Ms Whiting if it would be all right if he got a photocopy of the Work.  According to  him, his words were:

“Can you ask the solicitor if it’s all right if I get a photocopy of it.  Would it be possible to have a copy of my work.”

47                  Mr Wilson says that, notwithstanding the use of those words, he did not expressly give authority for any copy to be made.  Having regard to the circumstances, namely, that Mr Wilson was endeavouring to seek advice and that he was told that he would not be able to be given advice on the spot, use of those words could be taken to be an authorisation or licence for a copy of the Work to be made, albeit to be given back to him. 

48                  I accept that Mr Wilson genuinely believes that he has a cause for complaint in the way that he was treated. Nevertheless, I do not consider that the evidence justifies a conclusion that any copy of the Work made by the Council constituted an infringement of Mr Wilson’s copyright.  I find that the only copies made were the two copies that were given to Mr Wilson, and that Mr Wilson went away with the only copies that were made on that day.  I am not satisfied that the evidence justifies any finding that any additional copy was made, or that there was any impropriety on the part of the employees of the Council in relation to the matter.  It may be that the two copies that were made were made without Mr Wilson’s intended, express authorisation.  However, I consider that the objective facts, even accepting Mr Wilson’s version of them, were such as to constitute a licence to the Council to make the copies that were made.

49                  It follows, in my opinion, that the application should be dismissed with costs.

Associate:

Dated:              5 April 2001