Application by Meltwater Australia Pty Ltd - [2021] ACopyT 4

COPYRIGHT TRIBUNAL OF AUSTRALIA
Application by Meltwater Australia Pty Ltd [2021] ACopyT 4

File number: CT 2 of 2017

The Tribunal: GREENWOOD J (PRESIDENT)

Date of decision: 20 December 2021

Date of hearing: 9 December 2021

Category: No Catchwords

Number of paragraphs: 12

Date of last submission/s: 9 December 2021

Counsel for Meltwater Australia Pty Ltd: Ms A Campbell

Solicitor for the Meltwater Australia Pty Ltd: Baker McKenzie

Counsel for the Respondent: Mr R Lancaster SC with Mr B Lim

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)

DATE OF ORDER: 20 DECEMBER 2021

THE TRIBUNAL DIRECTS THAT:
1.The solicitors for Meltwater Australia Pty Ltd submit to the Associate to the President of the Tribunal orders giving effect to the Tribunal’s reasons published today, by Thursday, 23 December 2021.
2.The costs of and incidental to the application heard by the Tribunal on 9 December 2021 are reserved for consideration in relation to the question of costs more generally.

REASONS FOR DETERMINATION
GREENWOOD J (PRESIDENT):

These proceedings are concerned with the resolution of the terms of proposed orders of the Tribunal to be made as between Meltwater and CA (and all abbreviations adopted in the principal determination of 15 October 2021; Application by Isentia Pty Limited [2021] ACopyT 2 are adopted in these reasons) in relation to two outstanding matters (all other elements of the proposed order having been agreed between the parties). Although the Isentia and Meltwater proceedings continue to be heard together, these reasons address only outstanding matters of concern between Meltwater and CA.
The first matter concerns a protocol for dealing with what is described as “Interim Orders – Back pay”. The protocol (proposed Order 5) contemplates that Meltwater is to serve on CA by 22 December 2021 a document that specifies how it contends that the Tribunal Licence applies during the “Interim Period” as that term is defined in an interim order made on 23 April 2019; the quantum of any back payment during the period; the issue of how the back payment is calculated including by reference to the matters set out at Order 5(c); and as to “usage data” and “click through rates”, the document is to address the matters at Order 5(d)(i) to (iv).
Meltwater says that it cannot provide the document by 22 December 2021 and will need until 28 January 2022 to do so. CA says that if Meltwater is provided with an extension until then, CA will need additional time to properly analyse the data and form a view about the content of the document.
Meltwater will be provided with the extension it seeks until Thursday, 28 January 2022 and CA will be granted a corresponding extension until Friday, 26 February 2022 to respond…

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.

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Details

Case: [2021] ACopyT 4
Decision Date: 20 December 2021

CaseChat Overview and Summary

In this case, Meltwater Australia Pty Ltd filed an application with the Copyright Tribunal of Australia, which was presided over by Greenwood J. The dispute involves the terms of proposed orders between Meltwater and the Copyright Agency Limited (CA). The application addresses two outstanding matters between Meltwater and CA that were not resolved in the principal determination of October 15, 2021, in the case of Isentia Pty Limited. The first matter pertains to the protocol for handling "Interim Orders – Back pay," requiring Meltwater to provide a document specifying its contentions about the Tribunal Licence's application during the "Interim Period," the quantum of back payment, and other related matters. The second matter concerns the extent to which CA can disclose the terms of the Tribunal Licence and to whom CA can disclose this information.

The legal issues before the court were whether Meltwater should be granted an extension to submit the document related to the back pay, and if so, whether CA should also be granted an extension to respond. Additionally, the court had to determine whether Meltwater's proposed changes to the disclosure protocol for the terms of the Tribunal Licence were justified and whether the protocol should be modified to reflect Meltwater's proposed changes.

The court granted Meltwater an extension until January 28, 2022, to submit the document concerning the back pay and allowed CA a corresponding extension until February 26, 2022, to respond. Regarding the disclosure protocol, the court declined to adopt Meltwater's proposed changes to Annexure C, finding that the differential set of obligations between CA and Meltwater concerning the downstream licences was neither even-handed nor justified. The court reasoned that if there is to be a departure from the confidentiality regime, the operation of the departure should be consistent for both parties. Therefore, Meltwater's solicitors were requested to submit an order reflecting these reasons to the Associate to the President by December 23, 2021.

Orders