In a decision handed down on 28 March 2019, the NSW Civil and Administrative Tribunal has upheld a Council’s decision to provide ‘view only’ access to copyright documents the subject of an access application under the Government Information (Public Access) Act 2009. BAL Lawyers acted for the Council in the proceedings.
The applicant applied for access to information held by the Council relating to a development application for an abattoir adjacent to the applicant’s property. The Council provided a copy of some information to the applicant but decided that other information was protected by copyright. The Council decided that this information should not be copied but instead made available for inspection only. The copyright information consisted of reports prepared by consultants engaged by the proponent such as surveys, stormwater drainage designs and building plans.
The applicant’s contentions
The applicant contended that he required copies of the documents to be able to obtain legal advice about whether the development was ‘designated development’ for the purpose of deciding whether to commence legal proceedings regarding the development. He said this was not practicable if he could not provide his lawyers with copies of the information. He disputed that the documents were subject to copyright and argued that the Council had the onus of establishing that:
- the information was protected by copyright (including that the information comprised ‘original works’ and that their authors were ‘qualified persons’ within the meaning of the Copyright Act);
- copying the documents would amount to ‘reproduction’ for the purposes of the Copyright Act;
- the owner of the copyright had not granted an express or implied licence to the Council allowing copying of the information; and
- copying the documents did not fall within any of the exceptions to infringement in the Copyright Act.
The Tribunal’s decision
1. The information was protected by copyright
The Tribunal observed that, under the Copyright Act, the definition of ‘artistic work’ includes ‘drawings’ which in turn is defined to include a diagram, map, chart or plan and that a ‘literary work’ need not have literary merit but must provide information, instruction or literary enjoyment. To be protected by copyright the work must be original but need not be ‘novel’ – it is sufficient if the work was produced by the application of some independent intellectual effort. It cannot simply be a copy of someone else’s work.
While the applicant argued that there was no evidence that the works were original, the Tribunal found that the reports themselves indicated they were the product of independent effort in that they stated who prepared them and the methodology used in their preparation such as site visits, test results and analysis. The Tribunal accepted the Council’s submission that the likelihood that the reports were mere copies was remote given that they had been brought into existence to address aspects of a particular development application lodged with the Council. In those circumstances the Tribunal found that the works were ‘original’.
The applicant then argued that there was no evidence of the authorship of the documents sufficient to establish that their author was a ‘qualified person’ within the meaning of the Copyright Act. The Tribunal noted that a ‘qualified person’ is, for relevant purposes, an Australian citizen or a person resident in Australia. The Tribunal referred to evidence tendered by the Council at the hearing which included a list of the businesses and companies to which the various reports and plans were attributed which showed that in each case their business address was in Australia. The Tribunal observed that the addresses of the authors and/or owners on the reports were also shown as being located in Australia and that the content of the reports and drawings also indicated that they had been created in Australia. On that basis the Tribunal found that it was more likely than not that the authors of the documents were resident in Australia.
The Tribunal concluded that the information comprised original literary and artistic works within the meaning of the Copyright Act and was therefore subject to copyright protection.
2. Copying the documents would infringe copyright
The Tribunal observed that copyright is infringed by a person, who is not the owner of the copyright, doing or authorising the doing of an act comprised in the copyright. Reproducing a work in a material form is an act comprised in the copyright. Therefore reproducing or copying the work or authorising such an act will infringe the copyright unless an exception applies. The Tribunal found that the Council would authorise such an act if it gave express or implied permission to the applicant to reproduce the information, including providing copying facilities to enable the applicant to make his own copies.
3. No licence to allow copying
The applicant argued that the Council must establish that the owner of copyright had not granted an express or implied licence to copy the document. The Council said that no such licence had been granted. While the applicant gave evidence that he had approached the businesses associated with the reports seeking permission to make copies of the information, no such permission had been forthcoming. The Tribunal pointed out that this did not support the applicant’s argument that a licence may have been granted.
The Tribunal then considered the applicant’s argument that a licence to copy the documents should be implied because, in order for the development application to be processed, third parties would need to reproduce the documents. The Tribunal pointed out that s.10.14 of the Environmental Planning and Assessment Act 1979 provides an indemnity for the copying of documents during the development application process but that this does not extend to licensing the copying of documents for the purposes of the GIPA Act.
The applicant also relied on s.83 of the Local Government Act 1993, which provides that one copy of any plans and specifications accompanying an application for approval becomes the property of the Council. The Tribunal found that this did not include the assignment of copyright in the documents.
The Tribunal concluded that, in the absence of any evidence of any express licence having been granted or facts from which it could be implied, the applicant’s argument could not succeed.
4. None of the exceptions to infringement in the Copyright Act applied
The applicant relied on two exceptions in the Copyright Act, s.41 (fair dealing for the purposes of criticism or review) and s.43 (reproduction for purposes of judicial proceedings or professional advice).
In relation to s.41, the Tribunal followed an earlier decision of the Tribunal in which Senior Member Lucy had held that ‘criticism’ meant the act of analysing and judging the quality of a literary or artistic work. The stated purpose of the applicant in this matter was to provide the information to his legal advisors for the purpose of deciding whether to commence legal proceedings. The Tribunal concluded that this was not consistent with wishing to comment on the quality or merits of the information. The Tribunal added that it was the Council’s purpose in copying the documents which was relevant, not the applicant’s, and that the Council’s purpose would be to fulfil its obligations under the GIPA Act. This also did not fall within s.41.
The Tribunal then went on to consider s.43(1) of the Copyright Act which provides an exception in connection with legal proceedings. The Tribunal observed that there were no legal proceedings currently on foot and that the applicant had stated that he wished to obtain legal advice to determine whether to commence proceedings in the Land and Environment Court. This exception therefore did not apply.
The Tribunal referred to s.43(2) of the Copyright Act, which provides that fair dealing with a literary or artistic work does not constitute an infringement of the copyright in the work if it is done for the purpose of the giving of professional advice by a legal practitioner. The Tribunal held, relying on a decision of the Federal Court, that this provision applied only to dealings done for the purpose of giving legal advice and did not extend to dealings for the purpose of seeking legal advice. The exception therefore also did not apply here.
The Tribunal concluded that the Council would infringe copyright if it reproduced, or authorised the applicant to reproduce, the information in question. In those circumstances the Tribunal found that the Council’s decision should be affirmed.
The Tribunal’s decision highlights the complexities that can arise in deciding GIPA applications involving documents subject to copyright.
Of particular interest is the Tribunal’s finding that the Council would infringe copyright if it permitted the applicant to make his own copies of the copyright material. This aspect of the decision means that Councils should be careful in how they apply the advice contained in section 7 of the Knowledge Update published by the Information and Privacy Commission, “Copyright and the GIPA Act: Frequently asked questions for councils” (July 2014) particularly what is said in relation to the use of photocopiers in areas where people access development applications.