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Application by Isentia Pty Limited

Application by Isentia Pty Limited

Case [2021] ACopyT 2 15 October 2021

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COPYRIGHT TRIBUNAL OF AUSTRALIA
Application by Isentia Pty Limited [2021] ACopyT 2

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: 864

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Isentia Pty Limited

Details

AGLC: Application by Isentia Pty Limited [2021] ACopyT AND:COPYRIGHT AGENCY LIMITED (ABN 53 001 228 799)Respondent TRIBUNAL:GREENWOOD J (PRESIDENT)DR RHONDA SMITH (MEMBER)MS MICHELLE GROVES (MEMBER)
Case: [2021] ACopyT 2
Decision Date: 15 October 2021

CaseChat Overview and Summary

The Copyright Tribunal of Australia, presided over by Greenwood J, Dr Rhonda Smith, and Ms Michelle Groves, was presented with two separate applications by Isentia Pty Limited and Meltwater Australia Pty Ltd, both seeking a licence under the Copyright Act 1968 (Cth) for the reproduction and communication of literary works published in newspapers and magazines. Both applicants argued that the terms proposed by Copyright Agency Limited (CA) were unreasonable and sought either an order specifying reasonable terms or a grant of a licence in the terms they proposed. The key legal issue was whether the proposed terms by CA were reasonable under the Act. The Tribunal found that the applicants' claims under section 157(3) of the Act were well-founded. The Tribunal concluded that the terms proposed by CA were unreasonable, given the market power of the publishers and the lack of a reasonable methodology for the proposed charges. The Tribunal granted licences to both Isentia and Meltwater in the terms proposed by each applicant, subject to certain conditions, including a revised term of the licence and a specific press clip rate.

Orders