Copyright Agency Limited v Queensland Department of Education - [2007] FCAFC 124

FEDERAL COURT OF AUSTRALIA
Copyright Agency Limited v Queensland Department of Education
[2007] FCAFC 124
COPYRIGHT – reference from Copyright Tribunal of Australia – electronic use system – application by declared collecting society to Tribunal under s 135ZWA(1) of Copyright Act 1968 (Cth) to determine amount of equitable remuneration payable by respondent schools for licensed copying in electronic form and licensed communications in schools – associated application under s 135ZWA(2) to determine “electronic use system” to assess the number of the licensed copies in electronic form and licensed communications – interim survey of copying and communications in schools carried out by collecting society with the schools’ consent on a without admissions basis – schools wishing to have access to the results – whether Tribunal has power to determine an electronic use system providing for access.
Held: all questions answered “yes” in favour of amplitude of Tribunal’s jurisdiction.
Copyright Act 1968 (Cth) ss 135ZB (“electronic use notice”), 135ZWA
Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 cited
COPYRIGHT AGENCY LIMITED v QUEENSLAND DEPARTMENT OF EDUCATION & ORS
NSD 149 OF 2007
LINDGREN, EMMETT AND FINKELSTEIN JJ
10 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 149 OF 2007

ON A CASE STATED BY THE COPYRIGHT TRIBUNAL OF AUSTRALIA

BETWEEN:

COPYRIGHT AGENCY LIMITED
Applicant

AND:

QUEENSLAND DEPARTMENT OF EDUCATION &ORS
Respondents

JUDGE:

LINDGREN, EMMETT AND FINKELSTEIN JJ

DATE OF ORDER:

10 AUGUST 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The questions of law referred to the Court by the Copyright Tribunal of Australia are determined as follows:

Question 1:In relation to the Unprocessed Data, can an electronic use system determined by agreement between the parties, or by the Copyright Tribunal (the Tribunal), whether on an interim or a final basis, provide that:
(a)all of the Unprocessed Data; or
(b)a subset of the Unprocessed Data that may be determined by the Tribunal,

be provided to an administering body, or a recipient authorised by an administering body such as CAG (“Recipient”).

Answer: As to both (a) and (b) Yes.
Question 2:If the answer to any part of question 1 is Yes, can the electronic use system so determined provide that the Recipient may:
(a)use the Unprocessed Data or subset thereof without any limitation as to purpose; or
(b)do any one or more of the following:
(i)use the Unprocessed Data or subset thereof without any limitation as to purpose so long as it does not affect the integrity of any survey conducted as part of the electronic use system;
(ii)only use the Unprocessed Data or subset thereof for such purposes that are determined by the Tribunal to be necessary to ensure the integrity of any survey conducted as part of the electronic use system;

(iii)subject to any conditions that may be determined by the Tribunal, use the Unprocessed Data or subset thereof for Validation Purposes;
(iv)subject to any conditions that may be determined by the Tribunal, use the Unprocessed Data or subset thereof for Copyright Management purposes?

Answer: As to (a) Yes
As to (b) and each of its sub paras (i), (ii), (iii) and (iv) Yes

Question 3:In relation to the Processed Data, can an electronic use system determined by agreement between the parties, or by the Tribunal, whether on an interim or a final basis, provide that:
(a)all of the Processed Data; or
(b)a subset of the Processed Data that may be determined by the Tribunal,

be provided to an administering body, or a recipient authorised by an administering body such as CAG (“Recipient”).

Answer:As to both (a) and (b) Yes

Question 4:If the answer to any part of question 3 is Yes, can the electronic use system determined by agreement between the parties, or by the Tribunal, whether on an interim or final basis, provide that the Recipient may:
(a)use the Processed Data or subset thereof without any limitation as to purpose; or
(b)do any one or more of the following:
(i)use the Processed Data or subset thereof without any limitation as to purpose so long as it does not affect the integrity of any survey conducted as part of the electronic use system;
(ii)only use the Processed Data or subset thereof for such purposes that are determined by the Tribunal to be necessary to ensure the integrity of any survey conducted as part of the electronic use system;
(iii)subject to any conditions that may be determined by the Tribunal, use the Processed Data or subset thereof for Validation Purposes;
(iv)subject to any conditions that may be determined by the Tribunal, use the Processed Data or subset thereof for Copyright Management purposes?

Answer:As to (a) Yes
As to (b) and each of its sub paras (i), (ii), (iii) and (iv) Yes

2. The applicant pay the respondents’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 149 OF 2007

ON A CASE STATED BY THE COPYRIGHT TRIBUNAL OF AUSTRALIA

BETWEEN:

COPYRIGHT AGENCY LIMITED
Applicant

AND:

QUEENSLAND DEPARTMENT OF EDUCATION & ORS
Respondents

JUDGE:

LINDGREN, EMMETT AND FINKELSTEIN JJ

DATE:

10 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT
LINDGREN J:
INTRODUCTION

Section 161(1) of the Copyright Act 1968 (Cth) (the Act) provides that the Copyright Tribunal of Australia (the Tribunal) may, of its own motion or at the request of a party, refer a question of law arising in proceedings before it for determination by this Court. Section 161(6) provides that a reference of a question under s 161 is to be by way of a stated case for the Court’s opinion. Section 161(7) confers jurisdiction on the Court to hear and determine a question of law referred to it under the section.
In Tribunal proceeding CT 1 of 2005 between the present applicant (CAL) and the present respondents, the parties requested the Tribunal to refer the questions of law, set out at [13] below, to this Court for determination.
The proceeding before the Tribunal relates to a “statutory licence” (or exclusion from infringement) created by Pt VB of the Act. Part VB creates statutory licences in favour of educational institutions, institutions assisting persons with a print disability, and institutions assisting persons with an intellectual disability. The particular licences of present concern are those granted by Div 2A (ss 135ZMA–135ZME) for the reproduction and communication by educational institutions of works that are in electronic form.
CAL is a copyright collecting society that represents its members in the licensing of their copyrights. Its members include authors and publishers of literary, dramatic, musical and artistic works, and the agents of such authors and publishers. CAL has approximately 9000 members.
CAL is the declared collecting society for the purposes of Pt VB for the owners of copyright in literary, dramatic, musical and artistic works, other than works included in a sound recording or cinematograph film (which are not of present concern).
The respondents are either bodies that administer educational institutions or organisations that represent such bodies. They are “administering bodies” within the meaning of that expression in s 135ZB of the Act.
The proceeding before the Tribunal was commenced on 12 August 2005. By its application CAL requested the Tribunal to determine:
· under s 135ZWA(1) of the Act, the amount of equitable remuneration payable to CAL by the respondents for licensed copying in electronic form and licensed communications in schools; and
· under s 135ZWA(2) of the Act, the matters and processes constituting the electronic use system to be used to assess the number of licensed copies in electronic form and licensed communications made by the respondents, and any matters necessary or convenient be taken into account for the purposes of the system.
It is with s 135ZWA(2) that the stated case is chiefly concerned.
The expression “electronic use system” is not defined in the Act. The expression appears in the following definition of “electronic use notice” in s 135ZB:
a remuneration notice specifying that the amount of remuneration payable in respect of licensed copies in electronic form, or licensed communications, made by, or on behalf of, the administering body giving the notice is to be assessed on the basis of an electronic use system.
The expressions “remuneration notice”, “licensed copy” and “licensed communication” are defined terms in the Act. A remuneration notice is defined in s 135ZB, read with s 135ZU(1), to mean a written notice given by an administering body to the relevant collecting society by which the administering body undertakes to pay equitable remuneration to the society for licensed copies and licensed communications made by that body or on its behalf, being copies and communications made while the notice is in force. I discuss the definitions of “licensed copy” and “licensed communication” at [18] below.
The dispute that has given rise to the stated case arises from CAL’s refusal to allow the respondents access to certain data obtained on behalf of CAL in the course of an interim survey carried out on its behalf in the schools (with the respondents’ consent).
STATEMENT OF AGREED FACTS
The stated case contains the following Statement of Agreed Facts:
Parties
1.…
2.On 13 June 1990, CAL was declared under section 135ZZB(1) of the Act to be the collecting society for the purposes of Part VB of the Act for each owner of copyright in a literary, dramatic, musical and artistic work, other than a work included in a sound recording or a cinematograph film (Works).
3.…
4.The Respondents are represented in negotiations with CAL relating to Part VB of the Act by the Copyright Advisory Group (CAG) to the Schools Resourcing Taskforce of the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA). CAG represents almost all of the government and non-government schools in Australia (Schools).
5.CAL negotiates with CAG on behalf of schools, for:
(a)the equitable remuneration payable for the reproduction and communication of works under Part VB of the Act by schools, or on their behalf (licensed copies and licensed communications, respectively); and
(b)where relevant, the determination of a sampling system and an electronic use system for the purpose of assessing the number of licensed copies and licensed communications made by schools.
Electronic use system
Background
6.The Respondents engage in electronic use of copyright in Works for their, or each other’s, educational purposes (as the case may be) (electronic use).
7.The Respondents engage in electronic use, on a regular basis throughout the year, via a number of means which include non-exhaustively:
(a)    to scan or digitally photograph a Work;
(b)   to download or save to PC/hard disk a Work;
(c)    to copy to disk, USB key, CD or other portable device a Work;
(d)   to make available a Work through a school intranet, or more generally, the Internet;
(e)    to print a Work;
(f)     to email a Work;
(g)    to display or project a Work.
8.A proportion of the electronic use occurs through the Respondents relying on the defences to infringement given (upon the fulfilment of certain conditions) by ss 135ZMB, 135ZMC, 135ZMD and 135ZME of the Act (the Sections).
9.Other electronic use occurs in reliance on express or implied licences, or other defences available under the Act.
10.One of the conditions of the Sections is that a Respondent relying on them has issued an electronic use notice to CAL.
11.The Respondents have each issued electronic use notices to CAL in respect of electronic copying and communication occurring in Schools, in accordance with section 135ZU of the Act.
12.The Respondents have relied on the issue of electronic use notices to enable teachers and staff (together, Teachers) in Schools to copy and communicate Works in reliance on the Sections.
13.Section 135ZWA(2) of the Act provides that if an electronic use notice has been given by an administering body of an educational institution, the matters and processes constituting an electronic use system (EUS) must be determined by agreement between the administering body and the collecting society, or failing such agreement, by the Copyright Tribunal.
14.CAL and CAG have not yet determined by agreement all of the matters and processes constituting an EUS or all the matters that are necessary or convenient to be taken into account for the purpose of an EUS (the EUS system design matters) and, accordingly, CAL has brought the Application.
15.CAL and CAG have agreed that any final EUS will contain a mechanism to collect sample data from Schools relating to the making of licensed copies and licensed communications under Part VB of the Act.
16.In January 2005 AMR Interactive gave advice on the design of an EUS for Schools. AMR Interactive is a company with extensive experience in, among other things, collection and analysis of electronic data.
17.On 31 August 2005, the Tribunal made orders under [s 160] of the Act by consent noting inter alia that since 6 June 2005, by agreement between CAL and the Respondents a survey in interim form of electronic use had been conducted in schools in accordance with the AMR Interactive design and would be conducted up to 31 December 2005 (the Interim EU survey).
18.Pursuant to the Interim EU survey and in accordance with the orders of the Tribunal, selected schools (never 100% of schools in one year) (Sampled Schools) are required to cause records of electronic use to be made during the period (never the whole of a year) during which the school is a Sampled School, in the manner detailed in paragraphs 23 to 31 below.
19.From 1 January 2006 by agreement between CAL and the Respondents, the agreement noted by the Tribunal on 31 August 2005 has been continued pending the determination of the present Application.
20.As part of the Interim EU survey, as contemplated by the orders of the Tribunal and their continuation by agreement, a survey will be undertaken 10 times each year for a period of 4 weeks (the survey period). Each survey will cover 10 schools, so that 100 schools across Australia are intended to be surveyed each year.
21.Except when their school is included among the Sampled Schools, Teachers do not generally make a written or other formal record of their electronic use.
22.The Interim EU survey has been designed to ensure that, as far as can be achieved, the electronic use activities engaged in by Teachers in Sampled School[s] during a survey period are a continuation of their usual and routine electronic use activities engaged in outside the survey period, with the only difference being that Teachers make a record of those activities during the survey period.
Collection of data by Schools as part of the Interim EU survey
23.In order to allow the conduct of the Interim EU survey in schools, the Respondents:
(a)    contact Principals from the Sampled Schools in that survey period to:
(i)explain that their school has been selected to participate in the Interim EU survey;
(ii)request that they nominate an EUS coordinator for the school, who will be responsible for attending training on the Interim EU survey, coordinating the survey in the school and training other teachers and staff within the school about the requirements of the survey;
(b)   organise training sessions for EUS coordinators for the Sampled Schools;
(c)    in some cases, organise and pay for:
(i)the costs of hiring a venue for training, catering and equipment hire, including a computer with internet connectivity;
(ii)the costs of flights and associated travel costs for EUS coordinators and other staff attending EUS training;
(iii)relief staff for schools who have personnel attending training.
(d)   allow the facilities and resources of Sampled Schools to be used at no cost, for the carrying out of the Interim EU survey;
(e)    require Teachers to take part in the Interim EU survey and comply with the requirements of the Interim EU survey.
24.The Interim EU survey uses a series of web-based forms. Teachers register for the Interim EU survey online and securely log on to the Interim EU survey website.
25.In relation to each Work that is copied and/or communicated, each Teacher at a school taking part in the Interim EU survey as noted in the Tribunal orders of 31 August 2005 and continued by the agreement as set out in paragraph 19 above, is required to fill out a web-based form (Usage Record) that records information (Unprocessed Data) including:
(a)    individual user details (for example, teacher and school name);
(b)   the source, type and extent of copying and communication of Works done by that teacher or staff member as set out on the form referred to in paragraph 26 below;
(c)    the amount of copying and communication done by that Teacher; and
(d)   bibliographical details about the Works that have been copied and/or communicated by that teacher or staff member,
(or, if no electronic use by that Teacher occurs during that week of the survey period, the fact that there has been no electronic use).
26.If AMR Interactive is required (either by agreement between the parties or by order of the Copyright Tribunal) to remove any part of the Unprocessed Data to create a subset of the Unprocessed Data, that subset will be considered to be Unprocessed Data.
27.…
28.Usage Records recording Unprocessed Data will also be created in the course of participation in any final EUS.
29.When Teachers engage in electronic use activities as set out in paragraphs 6 to 7 above, what they are doing, and when, is known to them and to those observing them, and could be available (if requested) to be communicated to schools. However, the information is generally not recorded except when the school is a Sampled School.
30.…
31.…
Dealing with information collected under the Interim EU survey
32.Unprocessed Data is submitted electronically through the operation of the web-based survey forms to AMR Interactive.
33.AMR Interactive receives, collates and stores, and then processes the Unprocessed Data (the Processed Data).
34.Under the Interim EU survey, AMR Interactive then provides the following Processed Data to CAL
(a)bibliographical information about Works recorded by Schools in the Interim EU survey; and
(b)information about the amount of copying and communication of Works performed by Schools,
but only on the basis, and with the reservations, set out in subparagraph 1(d) of the Tribunal’s orders of 31 August 2005 (…), with the effect that no inference as to the correct answer to the present questions should be drawn from that circumstance.
35.CAL uses the Processed Data for the purpose of:
(a)the collection of amounts of equitable remuneration payable by administering bodies under section 135ZV, 135ZW or 135ZWA;
(b)the payment of the administrative costs of CAL out of amounts collected by it;
(c)the distribution of amounts collected by CAL;
(d)the holding on trust by CAL of amounts for relevant copyright owners who are not its members.
36.AMR Interactive’s costs in administering the Interim EU survey and collating, storing and processing the data collected by schools in the Interim EU survey are met by CAL out of funds collected from schools under the Part VB statutory licence.
37.The protocol for processing the data collected by schools under the Interim EU survey is a matter under negotiation between CAL and CAG.
Other data collection
38.Surveys are also conducted under sampling notices that have been given by the Respondents under section 135ZU of the Act in relation to photocopying of Works done by Teachers in Schools under Division 2 of Part VB of the Act.
39.…
Issues between the parties
40.The Respondents seek access to the Unprocessed Data and the Processed Data for two principal reasons:
(a)to verify and validate the data collected and collated under the Interim EU surveys, and any claim made by CAL for the payment of equitable remuneration based on that data (Validation); and
(b)to monitor and manage copyright payments they make made under Part VB, including taking measures to manage the expenditure of public funds and to implement 'smart copying' objectives as more fully described in paragraphs 43 to 44 below (Copyright Management).
41.…
42.AMR Interactive has provided data on an interim, limited and confidential basis to CAG in relation to the first twenty schools that took part in a survey conducted as part of developing the EUS. This data is subject to the terms of a Confidentiality Agreement between the Director-General of the New South Wales Department of Education and Training and CAL (…).
Copyright management and “Smart Copying”
43.The Respondents do not seek to unnecessarily inhibit copying in schools if it is serving a useful or educationally-valid purpose, but seek to devise ways to determine whether:
(a)all copying and communication being performed in schools is necessary;
(b)other systems, procedures or actions could be adopted to reduce the level of copying and communication being done in Schools;
(c)payments for equitable remuneration under the Part VB statutory licence could be reduced.
44.CAG’s aims as set out in paragraph 43 are sometimes referred to as “smart copying” practices.
45.In 2003, CAG commissioned a consultant to examine and report on how “smart copying” practices could be implemented in Schools. …
46.A number of the Respondents pay equitable remuneration entirely from, and a proportion of the Respondents pay equitable remuneration at least in part from, public funds.

In these reasons I will use the abbreviated forms of reference that appear in the above statement of agreed facts. It is noteworthy that the expressions “Unprocessed Data” and “Processed Data” are defined in a “present continuous” sense so as to include data of those classes already garnered, in the process of being garnered, and yet to be garnered, as part of the Interim EU survey. I will refer to both the Unprocessed Data and the Processed Data as “the Data”.
THE QUESTIONS OF LAW REFERRED TO THE COURT FOR DETERMINATION
The following are the questions of law referred to the Court:
1.In relation to the Unprocessed Data, can an electronic use system determined by agreement between the parties, or by the Copyright Tribunal (the Tribunal), whether on an interim or a final basis, provide that:
(a) all of the Unprocessed Data; or
(b)a subset of the Unprocessed Data that may be determined by the Tribunal,
be provided to an administering body, or a recipient authorised by an administering body such as CAG (“Recipient”).
2.If the answer to any part of question 1 is Yes, can the electronic use system so determined provide that the Recipient may:
(a)use the Unprocessed Data or subset thereof without any limitation as to purpose; or
(b)do any one or more of the following:
(i)use the Unprocessed Data or subset thereof without any limitation as to purpose so long as it does not affect the integrity of any survey conducted as part of the electronic use system;
(ii)only use the Unprocessed Data or subset thereof for such purposes that are determined by the Tribunal to be necessary to ensure the integrity of any survey conducted as part of the electronic use system;
(iii)subject to any conditions that may be determined by the Tribunal, use the Unprocessed Data or subset thereof for Validation Purposes;
(iv)subject to any conditions that may be determined by the Tribunal, use the Unprocessed Data or subset thereof for Copyright Management purposes?
3.In relation to the Processed Data, can an electronic use system determined by agreement between the parties, or by the Tribunal, whether on an interim or a final basis, provide that:
(a)all of the Processed Data; or
(b)a subset of the Processed Data that may be determined by the Tribunal,
be provided to an administering body, or a recipient authorised by an administering body such as CAG (“Recipient”).
4.If the answer to any part of question 3 is Yes, can the electronic use system determined by agreement between the parties, or by the Tribunal, whether on an interim or final basis, provide that the Recipient may:
(a)use the Processed Data or subset thereof without any limitation as to purpose; or
(b)do any one or more of the following:
(i)use the Processed Data or subset thereof without any limitation as to purpose so long as it does not affect the integrity of any survey conducted as part of the electronic use system;
(ii)only use the Processed Data or subset thereof for such purposes that are determined by the Tribunal to be necessary to ensure the integrity of any survey conducted as part of the electronic use system;
(iii)subject to any conditions that may be determined by the Tribunal, use the Processed Data or subset thereof for Validation Purposes;
(iv)subject to any conditions that may be determined by the Tribunal, use the Processed Data or subset thereof for Copyright Management purposes?
THE LEGISLATIVE FRAMEWORK
The first section in Pt VB is s 135ZB, which contains definitions for the purposes of that Part. An “administering body” is defined in s 135ZB as a body administering an institution, and “institution” is defined to mean an educational institution, an institution assisting persons with a print disability, or an institution assisting persons with an intellectual disability. The respondents administer educational institutions. The expression “collecting society” is defined as a body that is, for the time being, declared to be a collecting society under s 135ZZB.
The definition of “remuneration notice” was noted at [9] above. Section 135ZU(2) provides that a remuneration notice must specify whether the amount of equitable remuneration is to be assessed on the basis of a records system, a sampling system or an electronic use system. These three systems conform to the three categories of “remuneration notice” defined in s 135ZB: a “records notice”, a “sampling notice” and an “electronic use notice”. The expressions “records notice” and “sampling notice” are defined in s 135ZB to mean a remuneration notice specifying that the amount of equitable remuneration payable in respect of licensed copies made in hardcopy form or analog form by or on behalf of the administering body giving the notice, is to be assessed on the basis of a records system and sampling system, respectively. The expression “electronic use notice” is defined similarly but in relation to licensed communications or licensed copies in electronic form rather than hardcopy or analog form, and by reference to “an electronic use system” rather than a records system or sampling system. The expressions “records system”, “sampling system” and “electronic use system” are not defined in s 135ZB or elsewhere, and their meanings are to be divined by reference to other provisions of the Act.
Section 135ZU(2A) provides that an administering body may give either a records notice or sampling notice in respect of licensed copies made in hardcopy form or analog form, but may give only an electronic use notice in respect of licensed copies made in electronic form or in respect of licensed communications. It will be noted that so far as licensed copies are concerned, the distinction is based on the form of the copy: hardcopy or analog on the one hand or electronic on the other, not on the form from which the copy is made. However, as noted as [3] above and [17] below, Div 2A is concerned only with reproductions and communications of works that are in electronic form.
Divisions 2 and 2A are the Divisions within Pt VB dealing with educational institutions. Division 2 is concerned with the “Reproduction by educational institutions of works that are in hardcopy form”, while Div 2A is concerned with “Reproduction and communication of works that are in electronic form”. The first section in Div 2A is s 135ZMA which provides that the Division applies to the reproduction of works only where the reproduction is made from an electronic form of the work. Thus, Div 2A does not apply to reproductions made from works that are in hardcopy or analog form. It will be noted that “communication” is not relevant to works that are in hardcopy or analog form because “communication” refers to a making available online of a work or an electronic transmission of a work, and a work must be in electronic form if it is to be made available online or if it is to be electronically transmitted (see the definition of “communicate” in s 10(1) of the Act).
The expressions “licensed copy” and “licensed communication” are defined in s 135ZB. The statutory licences contained in Div 2A, that is to say, relating to reproduction and communication of works that are in electronic form by educational institutions, are contained in ss 135ZMC and 135ZMD. The expression “licensed copy” is defined in s 135ZB to mean a reproduction of the whole or part of a work being a reproduction that is made by or on behalf of an administering body in reliance on, relevantly, s 135ZMC or 135ZMD. The expression “licensed communication” is also defined in s 135ZB. When read with the definition of “communicate” in s 10(1) of the Act, a “licensed communication” is seen to be a making available online or an electronic transmission of a work in reliance on, relevantly, s 135ZMC or s 135ZMD.
The statutory licences created by ss 135ZMC and 135ZMD are contingent upon a remuneration notice given by an educational institution being in force; the particular reproduction or communication being carried out for the purposes of an educational institution; and the administering body having complied with the requirements of

s 135ZX(1) or (3) or s 135ZXA, as the case requires, in relation to the particular reproduction or communication.
Subsections 135ZX(1) and (3) relate to the situation where a records notice or sampling notice, respectively, has been given, and s 135ZXA relates to the situation where an electronic use notice has been given. The objective of subss 135ZX(1) and (3) and s 135ZXA is to ensure that the administering body makes an appropriate record of the extent and nature of licensed copies made, and, in the case of s 135ZXA, of licensed communications made, and that it informs the relevant collecting society accordingly.
The present case is concerned with the making of copies and communications in electronic form from a work in electronic form – “electronic to electronic”. It is therefore s 135ZXA that is relevant to these circumstances. Section 135ZXA provides:
Electronic use notices: notice requirements etc.
If an electronic use notice is given by, or on behalf of, an administering body to a collecting society, in respect of licensed copies made in electronic form or licensed communications, the administering body must:
(a)give a notice, in accordance with the regulations, in relation to each such copy or communication made by it, or on its behalf, while the electronic use notice is in force, containing:
(i)statements to the effect that the copy or communication has been made under this Part and that any work or other subject‑matter contained in the copy or communication might be subject to copyright protection under this Act; and
(ii)such other information or particulars (if any) as are prescribed; and
(b)in the case of each such communication made by it, or on its behalf, while the electronic use notice is in force – take all reasonable steps to ensure that the communication can only be received or accessed by persons entitled to receive or access it (for example, teachers or persons receiving educational instruction or other assistance provided by the relevant institution); and
(c)comply with such other requirements (if any) as are prescribed in relation to each such copy or communication made by it, or on its behalf, while the electronic use notice is in force.
Section 135ZXA can be complied with only if an electronic use notice has been given. An electronic use notice, it will be recalled (see [15] above) is a remuneration notice that specifies that the amount of equitable remuneration payable in respect of licensed copies in electronic form, or licensed communications, is to be assessed on the basis of an electronic use system.
The scheme that emerges from the provisions referred to above is that the administering body is charged with the responsibility of recording in detail each individual reproduction or communication that takes place, and that it is a condition of any particular copy or communication being a “licensed copy” or “licensed communication” that the administering body has done so.
Section 135ZWA provides in subss (1) and (2):
(1)If an electronic use notice is given by, or on behalf of, an administering body, the amount of equitable remuneration payable to the relevant collecting society by the administering body for licensed copies and licensed communications made by it, or on its behalf, while the notice is in force is an amount (whether an amount per year or otherwise) determined by agreement between the administering body and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.
(2)The matters and processes constituting an electronic use system, and any matters that are necessary or convenient to be assessed or taken into account for the purposes of the system, must be determined by agreement between the administering body and the relevant collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.
As noted earlier, resolution of the questions before the Court turns largely on the proper construction of subs (2).
It remains to note s 153DA within Pt VI of the Act. That section provides that the parties to an application to the Tribunal under s 135ZWA(2) for the determination of an electronic use system or any other relevant matters are the relevant collective society and the administering body. Section 153DA(2) provides that the Tribunal must consider the application, and after giving the parties an opportunity to present their cases, must make an order determining “the matter that is the subject of the application”. Relevantly, that matter is “the matters and processes constituting an electronic use system, and any matters that are necessary or convenient to be assessed or taken into account for the purposes of the system” (s 135ZWA(2); emphasis added).
THE PRESENT DISPUTE AND THE PARTIES’ CONTENTIONS
CAL’s position is not that it wishes to deny the respondents all access to information at any level of generality arising from the Interim EU survey. Indeed, as part of the consent orders made on 31 August 2005, the Tribunal noted that the respondents were to be granted access to certain data obtained from the Interim EU survey subject to certain conditions. CAL accepts that on the final hearing before the Tribunal evidence will be given in public at a certain level of generality of the results of the Interim EU survey. However, CAL will seek an order that the more detailed information obtained be made available only to the legal representatives of the respondents. The Tribunal has power under s 163 of the Act to direct that the hearing or part of the hearing take place in private and give directions as to the persons who may be present, and to give directions prohibiting or restricting the publication of evidence given before the Tribunal.
CAL’s contention is that if:
·the respondents had access to evidence of the copying that is taking place in particular schools under the direction of particular Teachers of particular Works, and
·the Teachers knew that the respondents had such access,
the Teachers would or might reduce the volume of their copying or otherwise change their copying practices, with the consequence that the results of the Interim EU survey would not be a reliable indicator of the true level of copying taking place over the longer term. The respondents have frankly stated that they wish to have access to information at that level of detail in order that they might take steps directed to reducing the level of copying and the associated costs to their institutions. CAL contends that this is an impermissible use of the results of the Interim EU survey.
In 2005, the AC Nielsen organisation undertook a survey for CAL and MCEETYA. Its purpose was to determine the volume and identity of published materials copied in Australian schools. The report on the survey is called the “2005 Australian Schools Print Copyright Survey Report”. The year 2005 was the 18^th year in which AC Nielsen had undertaken such a survey. The survey gave statistics by reference to State or Territory, primary or secondary school, government or non-government school, and type of material copied (book, periodical newspaper, print music, artwork and other published material). CAL has no objection to data at such a level of generality arising from the Interim EU survey also being supplied to the respondents.
For its part, CAG engaged Fankhauser & Associates (Fankhauser), in conjunction with MORR Solutions, to review copyright practices in the school education sector and to make a report on the review. This project, called the “Smart Copying” project, resulted in a confidential report by Fankhauser dated November 2004. The Smart Copying report makes 15 findings and nine recommendations. It is not necessary to set them all out. The report records that CAL has refused to release the school survey raw (primary) data collected by AC Nielsen to the schools. Fankhauser’s Findings 3, 6 and 7 were as follows:
Finding 3 Whilst diversity in education is highly valued, in the complex areas of copyright and school copying, there are significant educational and cost benefits to be gained from identifying a single set of accepted common best practice standards and benchmarks for all systems to apply. In the face of increasing costs, the reduction in page copy volumes is a national imperative; requiring a single national approach involving high levels of jurisdictional collaboration. The convergence of technologies and the digital environment engulfing schools will make this an even greater imperative beyond 2004.
Finding 6 Education systems are making payments to CAL for copying their own materials. Royalty statements from CAL detailing the source of the copyright distribution, confirm that jurisdictions are being charged for copying significant amounts of their own content. It appears that at the point of sampling, at the CAL administration and the school level there is sometimes a lack of clarity as to what should be included in the AC Nielsen sample. For education systems within the smaller jurisdictions, this might appear to be an insignificant issue, however total losses to systems associated with the transfer of funds are significant with CAL deducting an administration fee at a rate of 17% for all materials copied.
Finding 7 AC Nielsen Reports do not provide education authorities with information identifying who is copying their material. CAL argues against providing this information on grounds of commercial confidentiality. However if all education authorities agreed to approach CAL to release data pertaining to royalties collected by them, then the true extent of cross-jurisdictional copying could be ascertained. This is important in considerations of a cross-jurisdictional licensing model.
(Emphasis added.)
In various ways, Fankhauser’s recommendations were directed to the obtaining of greater and more detailed information as to the copying that is taking place in schools with a view to managing it better and reducing its cost. In particular, Recommendation 7, which repeated Finding 3 extracted above, was that MCEETYA endorse “smart copying” practices.
The respondents have never denied that they wish to use the Data in order to facilitate “smart copying”. By their Amended Points of Claim in Relation to Preliminary Matters filed in the Tribunal, they request the Tribunal to order that CAL ensure provision of access to them of the records of copying and communications created as part of the Interim EU survey and in any survey conducted as part of an electronic use system to be determined by the Tribunal, in accordance with a revised access protocol contained in a schedule to their Amended Points of Claim. In substance, that revised access protocol would have the “Survey Manager”, AMR Interactive or any organisation jointly appointed by CAL and CAG to replace AMR Interactive, deliver the information derived by it to CAL and CAG simultaneously.
Paragraphs 24 and 25 of the respondents’ Amended Points of Claim before the Tribunal were as follows:
24The Applicant has no proper reason to refuse to grant the access to information sought because:
(a)access to information is a matter or process within the “matters or processes that constitute an Electronic Use System”, allowing for the assessment, verification and monitoring of licensed copies and communications;
(b)access to information is a matter that is necessary or convenient to be taken into account for the purposes of an Electronic Use System;
(c)access to information is a cost effective mechanism to ensure the accuracy, effective operation and functionality of an Electronic Use System; and
(d)access to information is essential to enable the Respondents appropriately to manage the expenditure of public funds under Part VB of the Act.
25. Alternatively, the Applicant has denied the access to information sought by the Respondents for improper purposes, including the following ...:
(a)impeding the ability of the Respondents and schools represented by the Respondents to seek and obtain direct licences of copyright material as contemplated by section 135ZZF of the Act;
(b)impeding the ability of the Respondents to verify the amount of equitable remuneration payable to the Applicant;
(c)impeding the ability of the Respondents to provide information to members and schools about copying and communication occurring under Part VB of the Act;
(d)preventing or deterring the Respondents from taking measures that would reduce the amount of remuneration payable to the Applicant by the Respondents and thereby improperly maintaining and/or increasing the Applicant’s revenue.

CAL does not, of course, dispute the respondents’ right to conduct their own survey of the copying and communication in schools of works that are in electronic form, or even to question the Teachers concerning the information they have supplied as part of the Interim EU survey. As I understood him, senior counsel for CAL qualified this concession by stating that even such questioning might, depending on the circumstances and its timing, also distort the results of the Interim EU survey, and therefore its utility, and so the Tribunal might need to give directions constraining the respondents’ liberty they would otherwise have to do the things mentioned.
If it could be known that any survey-induced reduction in the volume of copying was “permanent”, the results would after all be a reliable predictor. But CAL’s concern is that any such reduction would be only short term; that the volume of copying and communication would later return to its previous level; and that in the result CAL would be denied equitable remuneration for any copying over and above the artificially low level.
Apart from any power the Tribunal may have to order the granting of access, the position under the general law is one of negotiation between the parties leading to agreement or a failure to agree: any survey carried out by or on behalf of CAL within the schools would have to take place on such terms as the respondents might stipulate, or not take place at all. The respondents might, for example, have declined to give consent to the carrying out of the Interim EU survey except on the condition that they were to be told simultaneously everything that CAL was being told. It would then be for CAL to choose to agree to that condition or not to carry out the Interim EU survey at all.
In these circumstances it is perhaps odd that it is the respondents who are contending that the Tribunal has the power to include a provision requiring CAL to grant them access to the Data, while it is CAL that contends that the Tribunal lacks that power.
CONSIDERATION
It must be emphasised that the questions before the Court are directed to the scope of the power of the Tribunal, not to any question as to how the Tribunal should or should not exercise that power. It follows that to answer the questions before the Court in a manner favourable to the respondents, as I do below, is not to indicate that the Tribunal should, or can reasonably be expected to, provide for access at all or provide for access subject to any particular conditions.
The questions of law for determination
In each of the four questions of law for determination by the Court, paras (a) and (b) are expressed in the alternative. No doubt, it was contemplated that the Court might answer para (a) “No”, and answer one or more of the more specific subparagraphs of para (b) “Yes”. Perhaps it was thought that if para (a) were answered “Yes”, the Court would find it unnecessary to answer para (b). CAL submitted that the answers to questions 1 and 3 should be “No”, and that questions 2 and 4 would then not arise, or, in the alternative, that if the answers to questions 1 and 3 were “Yes”, questions 2(b)(iii) and 4(b)(iii) (relating to use of the Data for validation purposes, subject to conditions that might be imposed by the Tribunal) should be answered “Yes”.
I am of the view that all questions and sub questions, viewed in isolation, should be answered “Yes”. That is to say, to take questions 1 and 3 as examples, I am of the view that in relation to the Data, an electronic use system can be determined by agreement between the parties or by the Tribunal, whether on an interim or a final basis, that requires that all of the Data be provided to an administering body or to a recipient authorised by it such as CAG. I am also of the opinion that in the alternative an electronic use system can be determined by agreement between the parties or by the Tribunal, whether on an interim or a final basis, providing that a subset of the Data be provided to an administering body, or to a recipient authorised by an administering body such as CAG.
I take a similar approach to questions 2 and 4 – I would answer para (a) in each case “Yes” and each sub paragraph of para (b) likewise “Yes”.
The use of the word “or” as a conjunction between the various paras (a) and (b) gives rise to a difficulty. Is it open to the Court to answer both (a) “Yes” and one or more of the subparas of (b) also “Yes”?
Of course, if the Tribunal were to make a determination pursuant to s 135ZWA(2) in the broadest terms in favour of the respondents, it would not also make a determination that was limited in one of the ways referred to in questions 2(b) and 4(b). On the basis that the greater includes the lesser, it may be necessary to answer only para (a) within each of questions 1, 2, 3 and 4 “Yes”, but affirmative answers to all questions and sub questions makes it clear that in my view the Tribunal has power to make a determination having the effect of granting the respondents qualified or limited access or unqualified and unlimited access, as the Tribunal sees fit in the exercise of its discretion in the light of the evidence before it.
The Data
The Data came into existence and will come into existence as a result of action taken pursuant to an agreement made between CAL and the respondents, which the Tribunal noted on 31 August 2005. The Data does not exist “naturally” within the schools, although it would be open to the respondents independently to compile the information that constitutes the Data.
On 31 August 2005, the Tribunal noted by consent as follows:
(a)The Schools (which are relevantly controlled by various of the Respondents) listed in Annexure A have agreed to take part in the survey of electronic use in the form of or to the effect described in Annexure B (2005 Survey), in respect of the period ending 31 December 2005 and use their best endeavours to follow the timetable for 2005 Survey as described in that Annexure.
(b)By agreeing that the 2005 Survey will take place, none of the parties agrees or admits that the terms of the 2005 Survey constitute any electronic use system terms that are finally agreed or that the parties may submit should be determined by the Tribunal in these proceedings or otherwise.
(c)The Respondents are to be granted access to certain data, on the terms set out in Annexure C.
(d)By agreeing to data access on the terms of Annexure C:
(i)CAL is not agreeing or admitting that similar or any access to data should be granted other than on the terms of annexure C, and other than on an interim basis; and
(ii)the Respondents are not agreeing or admitting that similar restrictions on access to data should be imposed on the Respondents other than on an interim basis.
(e)The parties intend to ask the Tribunal to determine certain matters in relation to a proposed Electronic Use System (Preliminary Matters), while reserving other matters for later determination if agreement cannot be reached by the parties.
(Emphasis added.)
I do not find it necessary to set out or describe the content of Annexures A, B or C.
As noted in para 19 of the Statement of Agreed Facts set out at [11] above, as from 1 January 2006, by agreement between CAL and the respondents, the agreement noted by the Tribunal on 31 August 2005 has been continued pending the determination of the application before the Tribunal.
It follows that body of Unprocessed Data (and therefore also of Processed Data) is artificial in the sense that it is brought into existence in response to interrogation by AMR Interactive for and on behalf of CAL with the respondents’ consent, but without agreement as to any right of the respondents to have access to it. A situation more readily to be expected, I suggest, would be a compilation or proposed compilation to be made by the respondents, with CAL seeking access and contending that the data would be unreliable in the absence of a régime designed to ensure that the data did not mirror a short term decrease in the volume of reproduction and communication.
Copyright in the Data
There is no property in information, but in the absence of special circumstances or of any agreement to the contrary between AMR Interactive and CAL, AMR Interactive would own the copyright in the written form of both the Unprocessed and Processed Data. The reason is that the Data constitute compilations and a compilation is a form of literary work of which AMR Interactive, a “qualified person”, was the author: see the definition of “literary work” in ss 10, 32 and 35 of the Act, and Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 (application for special leave to appeal to the High Court refused on 20 June 2003, M85/2002). CAL has emphasised that it does not raise any point in relation to copyright in the compilations, and wishes the questions to be determined as questions of substance between the parties.
The parties’ agreement of 31 August 2005 emphasised its without prejudice nature (see [45] above). This fact, coupled with CAL’s concession, means that the Court can and should deal with the Data simply as information that was obtained and continues to be obtained on behalf of CAL.
What is the raison d’être of the Data?
The parties’ agreement of 31 August 2005 does not reveal the purpose or purposes for which the Data was brought into being. I infer that there were two purposes. First, CAL will or may seek to put the Data or some of the Data into evidence on the final hearing before the Tribunal as being relevant to the determination under s 135ZWA(1) of the amount of equitable remuneration payable. Questions of relevance, weight and any confidentiality régime will be matters for the Tribunal on that hearing.
Secondly, I infer that CAL will contend that the Interim EU survey (the questions), or aspects of it, should somehow form part of the electronic use system to be determined by the Tribunal under s 135ZWA(2). Section 153C(4) provides that an order determining the amount of equitable remuneration payable under s 135ZWA(1) may be expressed to have effect in relation to licensed copies made before the date on which the order is made. (There is no similar provision relating to licensed communications made before the date of the order.) Although there is no similar express provision for retrospective operation of a determination under s 135ZWA(2), the effect of the network of provisions is that the electronic use system to be determined would have to be of such a kind that the amount of remuneration payable in respect of copies and communications made in the period from the giving of the electronic use notice to the making of the order can be assessed on the basis of that system, otherwise the respondents could not avoid infringing copyright (see the definitions of “electronic use notice”, “licensed copy” and “licensed communication” in s 135ZB and ss 135ZMC, 135ZMD, 135ZXA discussed earlier).
In summary, CAL will not only rely on the Data generated down to the time of the final hearing before the Tribunal in support of its application for a determination of an amount of equitable remuneration under s 135ZWA(1): it will also wish to have the questions that yielded that Data included in the electronic use system to be determined by the Tribunal under s 135ZWA(2). CAL will submit, or reserve the right to submit, that any electronic use system to be determined, in its ongoing operation, should continue to yield the Data, and the respondents will seek, and CAL will deny them, access to such data – a dispute that will be resolved by reference to this Court’s answers to the present questions.
History of the legislative provisions regarding records notices, sampling notices and electronic use notices
In resolving the present questions of the Tribunal’s power, it is desirable to go to basic principles in the light of the statutory provisions as they have developed.
The first matter to note is that copying within the schools is effected by the Teachers, and that they are accountable to the respondents, not to CAL. Subject to any provision in the Act to the contrary, CAL is not entitled to compel the Teachers to record or disclose details of reproduction and communication, but the respondents are entitled to do so.
In a proceeding for infringement of copyright, CAL or the copyright owners would be entitled, by such procedural mechanisms as subpoenas and discovery, to attempt to prove infringing reproduction or communication. Similarly, in any application for a determination of equitable remuneration, CAL would have to resort to procedural devices in order to prove the extent and nature of the reproduction and communication taking place within the schools.
On the other hand, a respondent would infringe copyright even if it had given a remuneration notice and the reproduction or communication was carried out solely for the educational purposes of the educational institution or another educational institution, unless it also complied with s 135ZXA (set out at [21] above) in relation to the particular reproduction or communication. As noted earlier, one requirement of s 135ZXA is that an electronic use notice must have been given, and the definition of “electronic use” assumes that an electronic use system exists and applies to the reproduction or communication in question. Section 135ZWA(2) makes clear that there is no electronic use system absent agreement or a determination by the Tribunal.
In sum, both CAL and the respondents need to have an electronic use system in place, and, to that end, need to have information concerning the reproduction and communication activity that is taking place in the schools.
The provisions creating the various statutory licences have recognised this common need of both the users of copyright material and the relevant collecting society, and have proceeded on the unsurprising assumption that it is the users who will implement the relevant system, with a right of “audit” of the implementation in the relevant collecting society.
The first provision for record keeping was introduced by the Copyright Amendment Act 1980 (Cth) (No 154 of 1980). By that amending Act, Div 5A “Copying of Works in Educational Institutions” and Div 5B “Copying of Works in Institutions Assisting Handicapped Readers” were inserted into Pt III of the Act. Section 53B created a licence for the making of copies of the whole or part of an article or other work by or on behalf of the body administering an educational institution for teaching purposes. It was a condition of non-infringement that the administering body, as soon as practicable after the making of the copies, make a record of the copying setting out details of it: ss 53B(6) and (7). The record was to be kept in writing or in any other manner prescribed by the regulations, and, if in writing, in accordance with a prescribed form: s 53B(8). Section 53B(11) provided for payment of “equitable remuneration” to the copyright owner as agreed between the owner and the administering body, or, in default of agreement, as determined by the Tribunal on the application of either the copyright owner or the administering body.
Section 53B was repealed by the Copyright Amendment Act 1989 (Cth) (No 32 of 1989) which inserted Pts VA and VB (and Pt VC, not presently relevant and later repealed) into the Act. The heading to the new Pt VB was simply “Copying of Works etc by Educational and Other Institutions”. Part VB comprised ss 135ZB–135ZZH. Div 2 (ss 135ZG–135ZM) related to the “Copying of works by educational institutions”. The new Pts VA and VB introduced the familiar three conditions of exclusion from infringement noted at [19] above: (1) the giving of a remuneration notice; (2) the making of the copy solely for the educational purposes of the educational institution or another educational institution; and (3) compliance with the record making and keeping requirements of s 135ZX(1) (records notice and system) or s 135ZX(3) (sampling notice and system). Section 135ZU allowed an administering body to give a remuneration notice to the relevant collecting society undertaking to pay equitable remuneration to the society for licensed copies made by it or on its behalf while the notice was in force. The expressions “remuneration notice”, “records notice” and “sampling notice” were defined in s 135ZB. The definitions of the latter two expressions included references to a “records system” and “sampling system” respectively, but those two expressions were not defined. A records notice and a sampling notice were remuneration notices specifying that the amount of equitable remuneration that the administering body was undertaking to pay was to be assessed on the basis of a records system and a sampling system respectively. Where a records notice or a sampling notice was given, there was provision for the Tribunal to determine the amount of equitable remuneration payable (ss 135ZV, 135ZW(1), 153C) and in the case of sampling notice, but not a records notice, there was also provision for the Tribunal to determine a sampling system (ss 135ZW(3), 153D).
Section 135ZV (records notices) contemplated that where a records notice was given, the amount of equitable remuneration would be for “each licensed copy”, whereas s 135ZW (sampling notices) contemplated that where a sampling notice was given, equitable remuneration would be payable “for licensed copies” and would be an annual amount per student of the institution concerned. A records system was intended to record every individual copy, whereas a sampling system was intended to be an approximation. The non-infringement provisions were expressed (s 135ZW(5)) not to apply to a copy made during a period when an administering body that had given a sampling notice did not comply with one or more of the requirements of the sampling system determined under s 135ZW.
Details of the marking and record keeping requirements where a records notice or a sampling notice was given were set out in s 135ZX and in the Copyright Regulations 1969 (Cth) (the Regulations). Importantly, s 135ZY provided for a right in the relevant collecting society, if it so wished, to assess the amount of licensed copying carried out at the premises of the institution, to inspect all the relevant records held at those premises that related to the making of licensed copies, and to inspect such other records held at those premises as were relevant to the assessment of the amount of equitable remuneration payable by the administering body to the society.
In summary, the provisions contemplated implementation of a records system or sampling system by the administering body, with a right of audit in the relevant collecting society.
Regulations 23JF – 23JL were introduced by the Copyright Regulations (Amendment) 1990 (Cth). These regulations contained detailed prescriptions relevant to the marking and record keeping that constituted a records system, but not in relation to a sampling system, perhaps because the Tribunal itself was given jurisdiction to determine a sampling system: see the then s 135ZW(3) of the Act.
The Copyright Amendment (Digital Agenda) Act 2000 (Cth) (No 110 of 2000) (the Digital Agenda Act) amended Pt VB (and introduced, in the form of a new Pt VC, a statutory licence for the retransmission of free-to-air broadcasts). The Digital Agenda Act adapted the Act to the electronic age. The definitions of “records notice” and “sampling notice” in s 135ZB were amended so as to limit their application to licensed copies made in hardcopy form or analog form, and a new Div 2A (ss 135ZMA–135ZME) was introduced into Pt VB headed “Reproduction and communication of works that are in electronic form”. Because an exclusive right to communicate a work to the public was introduced into s 31’s definition of copyright in relation to a work, the statutory licence in Pt VB was extended to reach communication as well as reproduction of works (“communicate” was defined in s 10(1) to mean “make available online or electronically transmit [...] a work or other subject-matter”). The new Div 2A applied, in relation to the reproduction of a work or part of a work, only if the reproduction was made from an electronic form of the work (s 135ZMA noted at [17] above).

I would have expected, on the basis of the background relating to records systems and sampling systems, that an electronic use system would also be implemented by the administering bodies, and that the relevant collecting society would have a right of audit. Indeed, the right of audit given to the relevant collecting society by s 135ZY was retained, but the Digital Agenda Act amended para (1)(b) so that it extended to encompass licensed communications as well as licensed copies. This shows that the legislature contemplated that an electronic use system (communications are not relevant to records systems or sampling systems) would be implemented by the administering bodies.
The connection between a records system or sampling system on the one hand and the new electronic use system on the other hand is emphasised by subs (2C) of s 135ZWA, which provides that, subject to certain constraints, an electronic use system may be based upon a records system, a sampling system or any other process or system. Of their nature, record systems and sampling systems must be implemented by the administering bodies.
The upshot of all that precedes is that the without prejudice Interim EU survey is quite anomalous. It is clear that the Tribunal would have power under s 135ZWA(2) to determine an electronic use system to be implemented by the respondents directed to recording the extent and nature of reproduction and communication of works taking place in the schools, whether based on a records system, a sampling system or any other process or system.
The Tribunal would have power to frame conditions as part of that electronic use system governing access by CAL to the data recorded by the respondents as part of that system. In any event CAL would enjoy its right of assessment and inspection given by s 135ZY.
The Tribunal would also have power to frame conditions directed to ensuring the reliability of the electronic use system as a predictor of the extent of reproduction and communication in the long term. In particular, the Tribunal would have power to craft conditions directed to ensuring that the Teachers did not alter their conduct in a way that would be reflected in a temporary decrease in the volume of reproduction and communication taking place.
In the light of these conclusions, I think the Tribunal must have similar wide ranging powers in relation to the Data generated by AMR Interactive for CAL.
In arriving at this result, I do not rely on the expression “and any matters that are necessary or convenient to be assessed or taken into account for the purposes of the system” in s 135ZWA(2). Rather, I rely on the expression “electronic use system” itself within the context of the Act.
A second reason why I reach the conclusion expressed above is that the scope of the Tribunal’s power under s 135ZWA(2) is influenced by the scope of the negotiation between the administering body and the relevant collecting society. The respondents’ argument, which I accept, is that the expression “electronic use system” should receive a generous interpretation that aids the role of the Tribunal in resolving an inability of the parties to agree upon an electronic use system. It is true, as CAL submits, that an alternative approach would be to regard the abortive negotiation as having related in part to the content of the electronic use system and in part to extraneous matters. According to this approach, the Tribunal’s power would be to resolve only disputation of the former kind, leaving disputation of the latter kind unresolved. Apparently, according to this approach, if the Tribunal were to determine an electronic use system to be implemented by the administering bodies, any dispute over the data to be provided by them to CAL would not be capable of being resolved by the Tribunal, although CAL would have its rights under s 135ZY.
Clearly, the expression “electronic use system” should not be stretched unduly, simply to achieve a convenient outcome, but nor should the Court refrain from giving the expression an expansive meaning, when, demonstrably, the legislative policy is to favour the parties reaching agreement and the Tribunal being able to resolve their inability to do so.
Privacy
CAL made a submission founded on the Privacy Act 1988 (Cth) (the Privacy Act) and, in particular, the National Privacy Principles that were introduced as Sch 3 to that Act by the Privacy Amendment (Private Sector) Act 2000 (Cth) (No 155 of 2000). Section 16A of the Privacy Act provides that an “organisation” must not do an act or engage in a practice that breaches a National Privacy Principle. CAL is an “organisation”.
CAL referred, in particular, to National Privacy Principle 2 which provides:
An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless ... .
The word “unless” introduced a statement of several exceptions, including “(b) the individual has consented to the ... disclosure”.
CAL suggested that in the case of the Unprocessed Data, “personal information” existed in two forms:
·information as to the copying and communication of works of identifiable authors and publishers which might be linked to relevant right holders in CAL’s database to whom distributions may ultimately be made; and
·information as to the identity of the teachers who complete the individual survey forms.
CAL submits that it would run counter to National Privacy Principle 2 for AMR Interactive or CAL to allow this information to be disclosed to the schools.
The privacy argument does not go to define the scope of the Tribunal’s power under s 135ZWA(2). Rather, privacy considerations go to the exercise of the Tribunal’s discretion and the framing of conditions.
In these circumstances I do not think it necessary to discuss further CAL’s privacy submission, and, in particular, questions raised by the expressions “personal information”, “primary purpose of the collection” and “secondary purpose”, or the question whether the individual Teachers consented to disclosure.
CONCLUSION
For the above reasons, I would answer the questions of law in the stated case as follows:

Question

Answer

1.        As to both (a) and (b)

Yes

2.        As to (a)

           As to (b) and each of its sub paras (i), (ii), (iii) and (iv)

Yes
Yes

3.        As to both (a) and (b)

Yes

4.        As to (a)

           As to (b) and each of its sub paras (i), (ii), (iii) and (iv)

Yes
Yes

CAL submitted that there should be no order as to costs, while the respondents submitted that costs should follow the event. There was no prior agreement between the parties as to costs. The determination of the questions of law was a discrete aspect of the proceeding before the Tribunal, and I see no reason why costs should not follow the event. On this basis, there should be an order that CAL pay the respondents’ costs.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.
Associate:
Dated: 10 August 2007

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 149 OF 2007

ON A CASE STATED BY THE COPYRIGHT TRIBUNAL OF AUSTRALIA

BETWEEN:

COPYRIGHT AGENCY LIMITED
Applicant

AND:

QUEENSLAND DEPARTMENT OF EDUCATION & ORS
Respondents

JUDGE:

LINDGREN, EMMETT AND FINKELSTEIN JJ

DATE:

10 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT
EMMETT J:

Under Part VB of the Copyright Act 1968 (Cth) (the Act), the remuneration payable in respect of certain copies and communications made by or on behalf of bodies administering educational institutions is to be assessed on the basis of an electronic use system as referred to in Part VB. The matters and processes that are to constitute such a system are to be determined by agreement, or failing agreement, by the Copyright Tribunal.
Pursuant to s 161 of the Act, the Tribunal has referred several questions of law for determination by the Federal Court. The questions of law concern the permissible content of an electronic use system. The precise questions referred to the Court by the Tribunal are set out in the reasons of Lindgren J, which I have had the advantage of reading in draft form. I agree with the answers proposed by Lindgren J for the reasons that his Honour states. However, I propose to say something about the issues in my own words.
THE LEGISLATIVE PROVISIONS
Part VB of the Act deals with the reproduction and communication of works by educational and other institutions. Division 2 of Part VB is concerned with reproduction by educational institutions of works that are in hardcopy form. Division 2A is concerned with reproduction and communication by educational institutions of works that are in electronic form. Divisions 3 and 4 are concerned with reproduction and communication of works by institutions assisting persons with a print disability or an intellectual disability. Those divisions are not presently relevant. Division 5 deals with the equitable remuneration to be paid by, relevantly, a body administering an educational institution.
Divisions 2, 2A and 5 establish a regime under which educational institutions may make reproductions of works or communicate works without infringing copyright in the works. Under the regime, the educational institution must undertake to pay equitable remuneration, to the relevant collecting society for the works, for such reproduction or communication.
Thus, under s 135ZMD(1), which is in Division 2A, the copyright in a literary, dramatic, musical or artistic work is not infringed by the making of reproductions of the work in electronic form, or the communication of the work, by a body administering an educational institution if:
·a remuneration notice given by the body to the relevant collecting society is in force; and
·the reproduction or communication is carried out solely for the educational purposes of the institution; and
·the body complies, relevantly, with s 135ZXA in relation to each reproduction or communication.
Section 135ZXA requires that the body must give a notice in relation to each copy or communication made by it, containing such information or particulars as are prescribed, must take all reasonable steps to ensure that each such communication can only be received or accessed by persons entitled to receive or access it and must comply with such other requirements as are prescribed.
A remuneration notice is a notice in writing given to the relevant collecting society by an administering body, whereby the body undertakes to pay equitable remuneration to that collecting society for copies and communications of works made while the notice is in force. A body may give either a records notice or a sampling notice in respect of copies made in hard copy form or analogue form. However, a body may only give an electronic use notice in respect of copies made in electronic form or in respect of communications.
Section 135ZV deals with records notices and s 135ZW deals with sampling notices. A records notice is a remuneration notice specifying that the amount of equitable remuneration payable is to be assessed on the basis of a records system. A sampling notice is a remuneration notice specifying that the amount of equitable remuneration payable is to be assessed on the basis of a sampling system. Under s 135ZV, where a records notice is given, the amount of equitable remuneration payable is such amount as is determined by agreement or, failing such agreement, by the Tribunal. Under s 135ZW, where a sampling notice is given, the amount of equitable remuneration payable is such annual amount as is determined by agreement or, failing such agreement, by the Tribunal. The difference is that, whereas, under a records system, remuneration is based on the actual copies and communications made, under a sampling system remuneration is based on presumptions based on samples of copies and communications.
Under s 135ZWA, if an electronic use notice is given by a body, the amount of equitable remuneration payable is an amount determined by agreement between the body and the collecting society or, failing such agreement, by the Tribunal, on application made by either of them. Under s 135ZWA(2), the matters and processes constituting an electronic use system, and any matters that are necessary or convenient to be assessed or taken into account for the purposes of the system, must be determined by agreement between the body and the collecting society or, failing such agreement, by the Tribunal, on application made by either of them. Under s 135ZWA(2C) an electronic use system may be based upon a records system, a sampling system or any other process or system.
Section 153DA(1) provides that the parties to an application to the Tribunal under s 135ZWA(2), for the determination of an electronic use system or any other relevant matters, are the relevant collecting society and the administering body. Under s 153DA(2), if an application is made to the Tribunal for a determination under s 135ZWA(2), the Tribunal must consider the application and must make an order determining the matter that is the subject of the application. The Tribunal may have regard to such matters, if any, as are prescribed. The parties have not referred the Court to any such matters.
If an electronic use notice is given and, during any period, the administering body does not comply with one or more of the requirements of an electronic use system determined under s 135ZWA, various sections, including s 135ZMD, do not apply to any reproduction, copy or communication of a work made during that period by the body, being a reproduction, copy or communication to which the relevant electronic use notice applies. That is to say, even if a remuneration notice given by an administering body is in force, where a reproduction or communication is made for the educational purposes of the institution and ss 135ZX and 135ZXA are complied with, there will nevertheless be an infringement by the making of reproductions of a work or the communication of the work by the body, if the body does not comply with the requirements of an electronic use system that is applicable.
THE PARTIES TO THE REFERENCE AND THEIR ACTIVITIES
Copyright Agency Limited (the Society) is a copyright collecting society declared under s 135ZZB of the Act to be the collecting society for each owner of copyright in a literary, dramatic, musical or artistic work, other than a work including a sound recording or a cinematograph film. The respondents are either bodies administering educational institutions, namely schools, or organisations that represent such bodies.
The respondents engage, on a regular basis throughout the year, in the electronic use of works for educational purposes. They do so by several means, including:
·scanning or digitally photographing a work;
·downloading a work or saving a work to a PC or hard disk;
·copying a work to disk, USB key, CD or other portable device;
·making a work available through an intranet;
·printing a work;
·emailing a work;
·displaying or projecting a work.
Since 6 June 2005, by agreement between the Society and the respondents, an interim survey of electronic use has been conducted in a number of schools (the Interim Survey). Pursuant to the Interim Survey, teachers in selected schools cause records of electronic use to be made during specified survey periods. The Interim Survey has been designed to ensure that, as far as possible, the electronic use activities that schools engage in during a survey period are a continuation of their usual and routine electronic use activities, except that teachers are required to make a record of those activities during the survey period.
Thus, in relation to each work that is copied electronically or communicated, each teacher at a school taking part in the survey is required to fill out a web-based survey form that records information (Unprocessed Data) including:
·individual user details, such as the name of the teacher and school;
·the source, type and extent of copying and communication of works done by that teacher;
·the amount of copying and communication of works done by the teacher;
·bibliographical details about the works that have been copied or communicated by the teacher.
Teachers do not generally make a written or other formal record of electronic use, such as that described above. In particular, Unprocessed Data is not recorded. However, it would be possible for a school to put in place a regime whereby Unprocessed Data could be recorded by teachers, independently of the Interim Survey.
Unprocessed Data is submitted electronically through the operation of the web-based survey forms to AMR Interactive. AMR Interactive receives, collates and stores the Unprocessed Data. After processing the Unprocessed Data, AMR Interactive provides to the Society bibliographical information about works copied or communicated by schools and information about the amount of copying and communication of works made by schools (Processed Data). The Society uses Processed Data for the purpose of:
·collection of amounts of equitable remuneration payable by administering bodies;
·payment of the administrative costs of the Society out of amounts collected by it;
·distribution to members of the Society of amounts collected by the Society;
·holding on trust by the Society of amounts for copyright owners who are not members of the Society.
AMR Interactive’s costs in administering the Interim Survey and collating, storing and processing Unprocessed Data are met by the Society out of funds collected by the Society from administering bodies.
THE QUESTIONS
The respondents seek access to Unprocessed Data and Processed Data for two principal reasons as follows:
·to verify and validate the data collected and collated under the Interim Survey and any claim by the Society for the payment of equitable remuneration based on that data; and
·to monitor and manage copyright payments made by bodies under Part VB, including taking measures to manage the expenditure of their funds and to devise ways to determine whether:
- all copying and communication being done is necessary;
-other systems, procedures or actions could be adopted to reduce the level of copying and communication; and
-payments of equitable remuneration could be reduced.
The questions referred to the Federal Court concern the extent, if at all, to which an electronic use system agreed to by the parties or determined by the Tribunal can provide that Unprocessed Data or Processed Data is be provided to bodies administering educational institutions, such as the respondents. They are also concerned with the uses that the respondents may make of the Data provided to them under an electronic use system.
The Society contends that the purposes of an electronic use system are confined to purposes relating to the assessment and distribution of equitable remuneration that an administering body undertakes to pay. It says that access to Data and use of Data by the respondents, for purposes such as those outlined above, have nothing to do with the purposes of an electronic use system. In particular, while the Society accepts that it may be appropriate for an independent third party to have access to all or part of the Processed Data and Unprocessed Data for audit or validation purposes, it says that the respondents are seeking to arrogate to themselves the role of auditor or validator. The Society also says that privacy considerations would preclude the uses of Data proposed by the respondents.

The respondents say that it is inherent, in the conferral of jurisdiction on the Tribunal to determine the matters and processes constituting an electronic use system, that the Tribunal should have a very broad scope to determine the component parts of such a system. Since the Tribunal has power to determine any matters that are necessary or convenient to be assessed or taken into account for the purposes of such a system, the Tribunal has a broad discretion as to what it will take into account for the purposes of making that determination. The respondents say that all of the uses to which they wish to put Processed Data or Unprocessed Data are at least matters convenient to be assessed for the purposes of such an electronic use system.
ANSWERS TO THE QUESTIONS
It is important to emphasise that the questions before the Court do not call for a determination by the Court as to whether Unprocessed Data or Processed Data should be made available to bodies administering educational institutions under any electronic use system. The questions are concerned only with whether an electronic use system may involve the provision of Unprocessed Data or Processed Data to such bodies for the uses contemplated. That is to say, the issue is whether a system that provides for such Data to be provided to such bodies or provides for the use that might be made of such Data by such bodies would not be an electronic use system within the meaning of Part VB.
Whether or not the system provides for independent auditing or validation, there is no reason why the respondents should not have access to the material to engage in their own audit or validation process. Such audit or validation may not be binding on the Society. Nevertheless, it is not inconsistent with the objects of an electronic use system that the Data should be available to the respondents for that purpose. It is a matter for agreement or the exercise of discretion by the Tribunal as to whether a system so provides. Privacy considerations are also matters that might be taken into account in determining the extent, if at all, to which a system might involve the provision of such Data and the use that might be made of the Data. The fact that certain provisions of a system might impinge on the privacy of some persons would not of itself mean that the system was not an electronic use system within Part VB.
The Act is not effusive in dealing with what is to constitute an electronic use system. The phrase “electronic use system” is not defined, except, incidentally, by reference to the function that it is to perform. That is to say, the definition of electronic use notice in s 135ZB simply indicates that remuneration payable in respect of certain copies and communications made by an administering body is to be assessed on the basis of an electronic use system. The relevant collecting society and administering body may determine such a system by agreement. It is only if the relevant collecting society and administering body cannot determine such a system by agreement, that the Tribunal is to determine such a system. The Tribunal is required to make an order determining a system, together with any matters that are necessary or convenient to be assessed or taken into account for the purposes of that system.
A system might be said to be an organised scheme or plan of action. It is an orderly or regular procedure or method, a coordinated body of methods, or a complex scheme or plan of procedure. It is apparent, from the terms of s 135ZWA(2), that an electronic use system is to be constituted by “matters and processes” and that it must enable the quantum of remuneration payable in respect of certain copying or communicating to be assessed. Clearly, the parties can determine by agreement, and the Tribunal has power to determine, all of the component parts of such a system, being the matters and processes that are to constitute the system, including any matters that are necessary or convenient to be assessed or taken into account for the purposes of the system.
On the other hand, there must be some limitation on the matters and processes that constitute such a system. That limitation must be determined by reference to its object, namely, of recording particulars of certain copies and communication made by administering bodies. So long as a matter or process that forms part of a system has a reasonable connection with the recording of particulars of copies or communications that are to be the subject of the system, the system will be an electronic use system within the meaning of Part VB of the Act.
There is no reason in principle or logic for concluding that a system could not involve the provision of Unprocessed Data or Processed Data to an administering body. Similarly, there is no reason why a system could not provide that an administering body be permitted to use such Data for a lawful purpose not inconsistent with the object of assessing remuneration for the relevant copying or communication.
Whether the system should in fact provide that such Data be provided and whether the system should limit the use that can be made of the Data are, of course, matters for agreement between the parties or for determination by the Tribunal. It may be that the parties would agree or the Tribunal would determine, that Data is only to be used for particular purposes. That is a matter for the parties to agree upon or for the exercise by the Tribunal of the broad discretion conferred on it by the Act.
CONCLUSION
The questions referred to the Court should be answered as proposed by Lindgren J. The Society should pay the respondents’ costs of this proceeding.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate:
Dated: 10 August 2007

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 149 OF 2007

ON A CASE STATED BY THE COPYRIGHT TRIBUNAL OF AUSTRALIA

BETWEEN:

COPYRIGHT AGENCY LIMITED
Applicant

AND:

QUEENSLAND DEPARTMENT OF EDUCATION & ORS
Respondents

JUDGE:

LINDGREN, EMMETT AND FINKELSTEIN JJ

DATE:

10 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT
FINKELSTEIN J:

I agree in the reasons of Lindgren J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.
Associate:
Dated: 10 August 2007

Counsel for the Applicant: Mr D K Catterns QC and Professor S Ricketson

Solicitor for the Applicant: Banki Haddock Fiora

Counsel for the Respondents: Mr R Cobden SC and Ms K M Richardson

Solicitor for the Respondents: Minter Ellison

Date of Hearing: 25 May 2007

Date of Judgment: 10 August 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 149 OF 2007

BETWEEN:	COPYRIGHT AGENCY LIMITED Applicant
AND:	QUEENSLAND DEPARTMENT OF EDUCATION &ORS Respondents
JUDGE:	LINDGREN, EMMETT AND FINKELSTEIN JJ
DATE OF ORDER:	10 AUGUST 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 149 OF 2007

Question	Answer
1. As to both (a) and (b)	Yes
2. As to (a) As to (b) and each of its sub paras (i), (ii), (iii) and (iv)	Yes Yes
3. As to both (a) and (b)	Yes
4. As to (a) As to (b) and each of its sub paras (i), (ii), (iii) and (iv)	Yes Yes

Counsel for the Applicant:	Mr D K Catterns QC and Professor S Ricketson
Solicitor for the Applicant:	Banki Haddock Fiora
Counsel for the Respondents:	Mr R Cobden SC and Ms K M Richardson
Solicitor for the Respondents:	Minter Ellison
Date of Hearing:	25 May 2007
Date of Judgment:	10 August 2007