Copyright Agency Limited v University of Adelaide
[1999] ACopyT 3
•27 August 1999
COPYRIGHT TRIBUNAL OF AUSTRALIA
Copyright Agency Ltd v University of Adelaide [1999] ACopyT 3
COPYRIGHT TRIBUNAL – determination of sampling system in respect of copies made under statutory licence – power to make interim order – use of forms in survey – whether person copying should determine question of reliance on statutory licence or on some other entitlement such as a fair dealing – whether the relevant reliance is that of the university’s administering body – effect of failure to mark copies under s 135ZX – effect of absence of a regulation prescribing marking requirements – effect of mischaracterization of copying – practice of calculating equitable remuneration on 3 year rolling averages – whether tenders should be called for conduct of sampling.
Copyright Act 1968 (Cwth), ss 135ZB, 135ZJ, 135ZK, 135ZL, 135ZU, 135ZV, 135ZW, 135ZX, 153D, 160
Copyright Agency Ltd v University of Adelaide (1999) 42 IPR 529 applied
COPYRIGHT AGENCY LIMITED v UNIVERSITY OF ADELAIDE & ORS
CT 4 of 1997
Burchett P
27 August 1999
SydneyCOMMONWEALTH OF AUSTRALIA
COPYRIGHT ACT 1968
IN THE COPYRIGHT TRIBUNAL
CT 4 of 1997
BETWEEN:
COPYRIGHT AGENCY LIMITED
ApplicantAND:
UNIVERSITY OF ADELAIDE, AUSTRALIAN NATIONAL UNIVERSITY, AUSTRALIAN CATHOLIC UNIVERSITY, UNIVERSITY OF BALLARAT, BOND UNIVERSITY, UNIVERSITY OF CANBERRA, CENTRAL QUEENSLAND UNIVERSITY, CHARLES STURT UNIVERSITY, CURTIN UNIVERSITY OF TECHNOLOGY, DEAKIN UNIVERSITY, EDITH COWAN UNIVERSITY, THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA, GRIFFITH UNIVERSITY, JAMES COOK UNIVERSITY OF NORTH QUEENSLAND, LA TROBE UNIVERSITY, MACQUARIE UNIVERSITY, THE UNIVERSITY OF MELBOURNE, MONASH UNIVERSITY, MURDOCH UNIVERSITY, THE UNIVERSITY OF NEW ENGLAND, UNIVERSITY OF NEW SOUTH WALES, THE UNIVERSITY OF NEWCASTLE, NORTHERN TERRITORY UNIVERSITY, THE UNIVERSITY OF QUEENSLAND, QUEENSLAND UNIVERSITY OF TECHNOLOGY, ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY LIMITED, SOUTHERN CROSS UNIVERSITY, SWINBURNE UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF SYDNEY, UNIVERSITY OF TASMANIA, UNIVERSITY OF SOUTHERN QUEENSLAND, UNIVERSITY OF SOUTH AUSTRALIA, UNIVERSITY OF TECHNOLOGY, SYDNEY, VICTORIA UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF WESTERN AUSTRALIA, UNIVERSITY OF WESTERN SYDNEY, UNIVERSITY OF WOLLONGONG
RespondentsTRIBUNAL:
BURCHETT P
PLACE:
SYDNEY
DATE:
27 AUGUST 1999
THE TRIBUNAL DIRECTS THAT:
The applicant bring in, on a date to be fixed, short minutes of orders appropriate to be made in the light of its reasons.
COMMONWEALTH OF AUSTRALIA
COPYRIGHT ACT 1968
IN THE COPYRIGHT TRIBUNAL
CT 4 of 1997
BETWEEN:
COPYRIGHT AGENCY LIMITED
ApplicantAND:
UNIVERSITY OF ADELAIDE, AUSTRALIAN NATIONAL UNIVERSITY, AUSTRALIAN CATHOLIC UNIVERSITY, UNIVERSITY OF BALLARAT, BOND UNIVERSITY, UNIVERSITY OF CANBERRA, CENTRAL QUEENSLAND UNIVERSITY, CHARLES STURT UNIVERSITY, CURTIN UNIVERSITY OF TECHNOLOGY, DEAKIN UNIVERSITY, EDITH COWAN UNIVERSITY, THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA, GRIFFITH UNIVERSITY, JAMES COOK UNIVERSITY OF NORTH QUEENSLAND, LA TROBE UNIVERSITY, MACQUARIE UNIVERSITY, THE UNIVERSITY OF MELBOURNE, MONASH UNIVERSITY, MURDOCH UNIVERSITY, THE UNIVERSITY OF NEW ENGLAND, UNIVERSITY OF NEW SOUTH WALES, THE UNIVERSITY OF NEWCASTLE, NORTHERN TERRITORY UNIVERSITY, THE UNIVERSITY OF QUEENSLAND, QUEENSLAND UNIVERSITY OF TECHNOLOGY, ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY LIMITED, SOUTHERN CROSS UNIVERSITY, SWINBURNE UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF SYDNEY, UNIVERSITY OF TASMANIA, UNIVERSITY OF SOUTHERN QUEENSLAND, UNIVERSITY OF SOUTH AUSTRALIA, UNIVERSITY OF TECHNOLOGY, SYDNEY, VICTORIA UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF WESTERN AUSTRALIA, UNIVERSITY OF WESTERN SYDNEY, UNIVERSITY OF WOLLONGONG
RespondentsTRIBUNAL:
BURCHETT P
PLACE:
SYDNEY
DATE:
27 AUGUST 1999
REASONS FOR DECISION
BURCHETT P
In this matter, I published reasons for decision (Copyright Agency Ltd v University of Adelaide (1999) 42 IPR 529) in respect of the fixing of the amounts payable by the respondent universities pursuant to their statutory licences, under ss 135ZJ, 135ZK and 135ZL of the Copyright Act 1968, to copy copyright material, being articles and literary, dramatic, musical and artistic works. The statutory notices by which the Tribunal’s jurisdiction was enlivened were sampling notices (see ss 135ZU and 135ZW of the Act), but any question arising under s 135ZW(3), in respect of the sampling system to be employed, was deferred for resolution by the parties, or at a later hearing. As the parties were unable to agree, it was necessary for the Tribunal to embark on a further hearing for the determination of a sampling system pursuant to s 135ZW(3) and s 153D (or, as s 153D(2), but not s 153D(1), calls it, for “an order determining the sampling process”). By s 160, the Tribunal has power, in such a case, to “make an interim order having effect until the final decision of the Tribunal on the application”.
The ability to make an interim order is not of merely academic interest in the present matter. Some of the universities have indicated that they are reconsidering their decisions to give sampling notices, and may take steps to change to a regime governed by records notices pursuant to ss 135ZU and 135ZV. If that is to occur for the next practicable period, the deadline, the parties were agreed, will be 30 September 1999. It seems to me that the possibility of early and significant disturbance to any sampling system determined now provides strong reason why I should make my decision in reliance on s 160. Other reasons also emerged during the argument. Of course, the terms of an interim decision need not suffer alteration in the event, although it will afford the parties the maximum opportunity to effect improvements. Senior counsel for the universities accepted this approach in the course of his submissions, but he asked me to determine, as on a final basis, those questions which can conveniently be determined now.
The major issue in respect of sampling is whether the system to be determined should be a variation of the system that has operated for a number of years by agreement, or should be a redesigned system a version of which was put forward on behalf of the universities. Of course, something in between would be possible, although some forms of tinkering with either of the integrated schemes proposed might involve obvious risk. The reason why the previously agreed scheme, if adopted as a basis, would nevertheless require to be varied is that what has to be assessed has undergone variation pursuant to my earlier decision, and furthermore a number of improvements have been suggested. In the past, the sampling process has been designed and conducted by A C Nielsen under the general direction of Mr J Alexander, who has put before the Tribunal what he has called his “model 2” as being “the best short-medium term option”. This model increases the sample size to cope with the demands of my earlier decision, which requires separate estimates for coursepacks, slides, print music and art. Persistence with the previous system, subject to necessary changes, has, as Mr Alexander pointed out, the advantage that its methodology has been proved over a period and is working. Certainly, there have been problems, but the parties have had experience in the process, and some difficulties have been solved. Some further solutions are now proffered. On the other hand, a new system would almost certainly involve its own problems, which might be worth enduring for the sake of demonstrable gains, but not unless sufficient gains can be demonstrated. I think this particularly applies to survey forms, redrafts of which can be misunderstood, whereas misunderstandings arising out of forms that have been used for several years are more likely to have already been detected and remedied. Mr Alexander’s evidence, which I accept, is that the current forms have been found to “work reasonably well”.
Copyright Agency Limited argues for the adoption of the Nielsen model 2, while the universities propose a new model, involving a more extensive survey, aimed at achieving a sufficiently reliable estimate of the copying in all universities within a single year. Historically, the surveys, pursuant to agreements between the parties, aimed at the assessment of three year rolling averages, and the Nielsen model 2 would continue that process. In doing so, and at the same time catering for the increased survey burden involved in my earlier decision, the Nielsen model 2 would require a one and a half times increase in the sample size for the next year. The alternative design proposed would involve a four-fold increase, and an increase in the frequency with which a particular university, and particular departments within a university, would be surveyed. I accept the evidence of Mr Alexander that, while this may reduce sample error somewhat, it would also be very likely to increase non-sample error, so as to yield little overall improvement, or even cause loss of overall accuracy. Non-compliance is an inevitable problem in a survey of this kind, and an increase in burden would push respondents towards non-compliance. Particularly would this be so, if the Nielsen forms were also jettisoned in favour of more complex and less familiar forms requiring persons who are not copyright lawyers to make judgments of copyright law.
It is convenient to note here that the forms proposed by Mr Alexander, based on the existing ones but varied for the reasons I have indicated, are propounded by Copyright Agency Limited subject to one amendment (which should be reflected in every relevant reference in them). That amendment would provide for unreported judgments to be classified together with legislation, and is not in itself controversial.
Among the issues related to the forms which were controversial, was the question of imparting information revealed by the completion of them to the universities. In the past, this issue has been a subject of debate and a source of irritation between the parties. Copyright Agency Limited, supported by A C Nielsen, has been reluctant to communicate detailed information because of the risk of undermining the integrity of the survey. The opinion of Mr Alexander, which I accept, is that the provision of information capable of pointing a finger at departments or individuals has the potential to affect behaviour. Individuals may make short term changes in their copying habits during the currency of a survey the details of which they know will become available to their university, thereby distorting the picture it gives of their overall behaviour and, more importantly, of the overall behaviour across the universities of which their behaviour is a representation. On the other hand, I am strongly attracted by the submission put on behalf of the universities that the results of the sampling process should be fully accessible to them in a form that is both informative and capable of validation. The answer which emerged during the course of the argument, and which still appears to me to be appropriate after further consideration, is that the full information garnered, excepting the individual names and departments of respondents, should be made available to the appropriate representative of the universities, namely, the Australian Vice-Chancellors’ Committee, upon its undertaking not to communicate detailed information to any particular university surveyed, but to keep the details confidential, to be used only for the purposes of validation and of the consideration of questions of general policy, including general policy advice to universities. It may be that this solution of the problem is capable of fine-tuning by agreement between the parties, and I invite them to reconsider the expressions I have used when short minutes are brought in.
The Nielsen model 2 forms include forms referring to coursepacks. Coursepack copying is an important issue considered in my earlier decision (Copyright Agency Ltd v University of Adelaide at 543-544). I assessed a special rate for coursepacks. The survey forms include questions as follows:
“Are the copies to form part of a collection of readings or a course pack or a similar collection to be issued as a set to students or staff? (NB: These packs do not include collections of media clippings made for staff.)”
There was much debate at the later hearing about the definition of coursepacks. I have considered the question whether some further definition is required, and the appropriateness of the form of words suggested for use in a survey as proposed in Nielsen model 2. In my opinion, it is inappropriate to attempt a further exposition of what is meant by coursepacks, or to force upon the concept some artificial definition. University lecturers are very well aware of the nature of coursepacks; they invented them. The evidence at the earlier hearing was that coursepacks account for at least about 60% of current copying in universities. I cannot believe that the simple question I have quoted from the proposed forms (subject to a miniscule alteration – I would delete the word “a” before “course pack”) would present the slightest difficulty. It seems to me to provide (particularly having regard to the words “to be issued as a set”) a reasonable encapsulation of the concept I have already expounded at greater length at the pages I have cited from my earlier decision. The survey forms are not intended, when completed, to constitute considered judgments, such as a court might give, on the particular copies referred to in them; they are practical documents intended to enable an approximate assessment to be made, upon statistical principles, of the whole that the sample represents. And it is to be remembered that the forms provide, in the case of coursepacks, for the supply of “a copy of the set of material”, that is to say, they facilitate validation.
Counsel for the universities submitted that the licensed copies for which (under s 135ZU) the universities had undertaken to pay equitable remuneration were, by virtue of the definition of “licensed copy” in s 135ZB, copies made “in reliance on s 135ZJ, 135ZK or 135ZL”. On this basis, it was argued that the forms to be used in the sampling process, instead of seeking (as the Nielsen model 2 forms do) objective information about each item of copying, should require the copier to specify whether the copy is made in reliance on the statutory licence. It was pointed out that copies might be made in reliance on a fair dealing exception, on some special licence, or otherwise not on the statutory licence. Counsel went so far as to submit that “[w]hether copying for staff use is within the scope of a fair dealing exception will depend upon the circumstances of each individual example of copying. There is no way that survey data, on the basis of the crude differentia that has been employed in segregating staff copying into different sub-species, can decide how much copying for staff use was within the scope of a fair dealing exception, and how much was not.” Counsel submitted that s 135ZB “proceeds on the basis that one proceeds copy by copy in deciding what is the licensed copy. It contemplates that it is each copy that one looks at to see whether it has been made in reliance on the section.” He did not shrink from the consequence of his submission, that a legally unqualified lecturer’s mistake in choosing to assert reliance on a misunderstood fair dealing provision, rather than on the statutory licence, would involve the university in an infringement.
It seems to me that this approach, which counsel for Copyright Agency Limited characterized as a “loophole” approach, would, if correct, completely stultify the statutory scheme. If it is to be left to individual lecturers (and in practice, probably, not even lecturers, but office assistants) to choose whether to rely on the statutory licence or on a layman’s understanding of various statutory exceptions, there will inevitably be great numbers of infringements. It should also be appreciated that the same position would apply, if the argument were correct, in relation to a records notice. For s 135ZX(1) requires records to be kept and retained “of the making of each licensed copy”, thereby attracting the same definition in s 135ZB, with its reference to reliance on the sections that create the statutory licence. I do not accept that Parliament intended the records provisions to be capable of being rendered futile by uninformed decisions not to rely on the statutory licence and therefore not to make a record.
There are a number of answers to an argument that involves such difficulties. In the first place, the definition of “licensed copy” in s 135ZB does not refer to the reliance of the person operating the copier; it refers to “a copy made by, or on behalf of, a body administering an educational institution in reliance on” the relevant sections. The reliance to which this provision refers is the reliance of the administering body. That understanding of the definition fits the terms of s 135ZU, by which it is the administering body which undertakes to pay equitable remuneration for licensed copies made by it, or on its behalf, while the notice is in force. Having regard to the history, the context and the purposes of the Copyright Act, I think Part VB contemplates that an administering body which has given a remuneration notice will, while it is in force, be relying on the statutory licence to justify, to the extent it is open to it to do so, all copying not otherwise justified. The elaborate provisions inserted into the Act were not intended to leave unremedied the large and uncertain area covered by counsel’s submission.
In a case, such as the present, where the remuneration notice is a sampling notice, the sampling process is intended to measure what actually happens in the university, day in and day out, over the whole period of the notice. Over that period, lecturers and their office assistants will not be thinking about statutory loopholes when they make copies; knowing their university has given a remuneration notice, but not a records notice, they will simply be making copies on the understanding that it is lawful to do so. A sampling procedure which measures the objective facts in order to assess the numbers of copies in truth falling within the statutory licence, while excluding those in truth justified on some other basis, will accord with the reality. But to insert in the survey questions about the reliance of those copiers surveyed upon particular statutory provisions, questions they would not otherwise ask and that are not asked elsewhere during the bulk of the copying the sample is intended to represent, would be artificial and distorting. What is to be “assessed” under s 135ZW(3) is a practice of copying which, I am satisfied, takes place because the universities rely on the statutory licence, and, if it is relevant, individual lecturers do so also. Only if the sampling documents force them to, would they generally be likely to look past the scheme to which their university has adhered. That this is so is demonstrated by the consensus over a number of years on sampling procedures that tested objective facts rather than subjective intentions.
It must be accepted that the objective data recovered by the surveys to date cannot yield a certain answer in each individual instance of copying. Neither would the subjective approach which is suggested, if only for the reason I have already given, that it would require an answer about reliance from persons generally not skilled in copyright law. However, sampling, in its nature, does not yield, and is not intended to yield, an exact figure, but an approximate one. On all the evidence, I see no reason to doubt that any over-counting through the inclusion of copying which could have been justified apart from the statutory licence is counterbalanced by under-counting, particularly through recording lapses. The very fact that the method (improved from time to time as defects have been discovered) has been accepted by consent over a lengthy period is strong evidence that, in practice, it has achieved results that were seen as appropriate by those in the best position to judge. The universities have not sought to prove otherwise; the attacks on the sampling procedures have suggested weak points and possible openings for error, and have identified isolated problems, but there has been no attempt to show that, on balance, the results have been skewed against the universities. Indeed, the evidence is that the Nielsen surveys have tolerated a measure of under-reporting (up to 10%), and an absence of checking of copying done outside university premises.
Counsel for the universities pointed out that each of ss 135ZJ, 135ZK and 135ZL conditions the protection it grants against infringement of copyright, not only upon the giving of a remuneration notice, but also upon any copy being made “solely for the educational purposes of the institution or of another educational institution” and upon the administering body complying (in the case of a records notice) with s 135ZX(1) or (in the case of a remuneration notice) with s 135ZX(3). The argument was that since, by s 135ZB, a “licensed copy” is made by the administering body “in reliance on s 135ZJ, 135ZK or 135ZL”, and the remuneration notice under s 135ZU undertakes to pay equitable remuneration for licensed copies, remuneration is not payable unless the conditions that have been mentioned are complied with, and in particular all copies are marked as required by s 135ZX. But there is a non sequitur in this argument. It does not follow, because a copy is made in reliance on, for example, s 135ZJ, that it actually complies with every requirement made necessary by that section. People often rely on provisions with which they do not wholly comply. They may be in breach of an obligation that attaches to them, or their reliance may misfire, but nevertheless what they have done was done in reliance on the provision. In the case of Part VB of the Copyright Act, the question of reliance is only introduced indirectly, through the definition of “licensed copy”; the direct provision is s 135ZU, by which the administering body undertakes to pay equitable remuneration “for licensed copies … being copies made while the notice is in force”. If a copy is made in reliance on an appropriate provision of the Part, it would be an inconvenient construction which would create an exception from the undertaking whenever an incidental requirement could not be shown to have been precisely fulfilled. It would be even more inconvenient than might appear, at first sight, in a case such as the present. For the requirement of marking pursuant to s 135ZX(3) is a requirement to mark “in accordance with the regulations”, and in fact there is no regulation prescribing any form of marking pursuant to this provision.
In my opinion, in the absence of any regulation, s 135ZX(3) imposes no relevant obligation. Even if it did, and that obligation was not complied with, I do not think a university could rely on its own failure to comply as a ground to be excused from performance of its undertaking to pay equitable remuneration in respect of copies actually made. When the draftsman intended a breach of an obligation to have an invalidating effect of some kind, he knew how to achieve that. The language of each of ss 135ZJ, 135ZK and 135ZL makes compliance a condition of protection from infringement, as has been pointed out. Similarly, in s 135ZW(5), it is provided that a failure to comply with a requirement of a sampling system determined under the section will prevent the application to a copy of s 135ZJ, 135ZK or 135ZL. It is noteworthy that the subsection does not go on to deny also the application of s 135ZU or s 135ZW(1). As one would expect, a breach of the sampling requirements does not excuse the administering body from its obligation to pay, notwithstanding that its reliance on the relevant protective section becomes ineffectual.
Even if the argument put on behalf of the universities were otherwise correct, it seems to me that copies not marked as required, and any other copies in respect of which omissions have occurred in the ordinary course of copying operations undertaken pursuant to the statutory licence, might still be regarded as properly within the contemplation of the provisions for equitable remuneration for licensed copies to be assessed under s 135ZW. The incidental production of copies put to the service of the university which, on that assumption, might escape regular payment as licensed copies, would be a relevant matter to be taken into account under s 135ZW(2). It is perhaps an inevitable consequence of the statutory licence that some copies would be missed in a marking procedure, or mistakenly characterized, and a fair calculation of remuneration might be expected to put them back in for the purpose of assessing the amount payable for licensed copies.
The situation of a category of copying deliberately excluded, because the subject of separate arrangements, such as copying for external students, is plainly distinguishable. The passages in which, in my earlier decision at 548-549, I noted that certain copying (if done) was not done under Part VB are not relevant to the present problem.
Separate issues were raised by the practice of calculating remuneration on the basis of three year rolling averages. This practice (by which the figures for the instant year are averaged with those of the two preceding years) has the effect of smoothing out sharp fluctuations that may occur in a particular year. It also has the effect of reducing the burden of sampling, because the degree of statistical accuracy achieved over the three year period need not be attained in a single year. The practice was introduced originally by agreement, in order to assist the universities at a time when the cost of copying was rising very steeply. That situation has now changed, and the universities seek to dispense with the system. Counsel for Copyright Agency Limited opposes this, pointing to the increased cost and work burden of sampling confined to a single year. He also argues that it would be inequitable to permit the universities, having had the benefit of the averaging process at a time when it reduced the remuneration of copyright owners, now abruptly to abandon it at will.
Section 135ZW(2) requires the Tribunal to have regard “to the number of licensed copies made by, or on behalf of, the administering body in a particular period and to such other matters (if any) as are relevant in the circumstances”. Because this subsection, providing for the determination of an “annual amount”, refers, not to the very year to which that annual amount relates, but to “a particular period”, it was not in dispute that the Tribunal is not tied to the year in question, or indeed to any single year. It follows that a determination by reference to a period of three years, the period adopted in past determinations, is within power. The question is whether such a determination is the preferable one. In answering that question, I am entitled to take into account “such other matters … as are relevant in the circumstances”. In my opinion, the fact that determinations have in the past been made by agreement, and largely for the benefit of the universities, on the basis of three year rolling averages is relevant. It is also relevant that the statistical evidence shows the burden of sampling can be made less under this system than it would be if a single year were required to be assessed on its own. The mathematical effect of smoothing out sharp changes which may occur in a single year is relevant too. There are advantages in linking payments to long term trends, rather than having them bounce with every short term fluctuation.
The purpose of the sampling is to enable equitable remuneration to be paid, and rolling averages have been historically a part of the ascertainment of what was seen as equitable. At least for the present, and in the immediate future, it seems to me that they remain an appropriate and effective way of doing this. Particularly as there is now uncertainty whether, in the future, the sampling process will or will not have to be radically changed, depending on the number of universities continuing to adhere to the sampling system, it is undesirable to decide upon a completely different process, involving added sampling burdens, at this time. My determination should be an interim one, and it should not revise the concept of the three year rolling average.
A less radical change, proposed by Copyright Agency Limited, is to make use, in the sampling procedures, of the bar code borne by many modern books. If this could be used, it would obviously make for precise and easy identification. However, the universities pointed out that not all books or periodicals have bar codes, and they objected to a requirement to use the bar code where there is one. Ultimately, both sides accepted that it would be appropriate to make resort to the bar code, in appropriate cases, optional. If experience shows that it is convenient, no doubt its use will grow.
One of the changes introduced by my earlier decision was the fixing of a special rate for artistic works copied onto slides. I stated the justification for this (at 547) in the following terms:
“I accept the submission of counsel for the applicant that a slide is a much more powerful use of an artistic work than a mere photocopy made in the ordinary way. A slide is designed for magnification and exhibition to a number of people. Accordingly, it should attract a special rate of equitable remuneration.”
Counsel for Copyright Agency Limited contended that this justification would apply also to copying in the form of transparencies for overhead projection. He pointed out that these are treated as equivalent to slides under a licensing scheme in operation in the United Kingdom. Counsel for the universities, on the other hand, argued that the evidence in the present case had been directed to slides, and they opposed the extension of the special rate to overhead transparencies. I have concluded that I should accede to the submission made on behalf of the universities. If overhead transparencies are used for the magnification and exhibition of artistic works to numbers of people, logically, they should be treated in the same way as slides of artistic works. However, on the evidence, I am simply unable to conclude whether any significant use of that kind occurs in universities. I should not substitute my personal sporadic experience of overhead transparencies for evidence which can be tested and weighed in the normal manner.
Another question raised on behalf of the universities was whether tenders should be called in respect of the conduct of the survey. It was pointed out that, although expenditures on surveys had been borne in the past by Copyright Agency Limited, and the universities submitted they should continue to be borne by that company, the cost was of some concern to the universities, to the extent that it was taken into account by the Tribunal in the fixing of the amount of equitable remuneration (see my earlier decision at 542, 550). However, although the cost of collection was taken into account, it was not allowed directly. Had its reasonableness been the subject of attack, I would not have allowed it at all, except to the extent that I thought it reasonable. The submission made now is put in general terms, unsupported by any evidence which I would accept as suggesting the cost is in fact excessive (indeed such evidence as there was appeared to have been based on a misunderstanding by the universities’ expert of the work involved), and it has not been suggested that the collection costs incurred by Copyright Agency Limited are out of line with the cost of similar activities undertaken by others elsewhere in the world.
Counsel for the universities made it clear, in submissions, that there was no objection in principle to the contractor conducting the sampling process being A C Nielsen. In my opinion, it is not appropriate, at this stage, to risk further delay in the implementation of the necessary sampling work in order to settle the terms of a call for tenders and pursue a tender process. Certainly, the possibility of calling for tenders ought to be kept in mind for the future. It would, perhaps, be more practicable for the parties to endeavour to agree on a process (possibly through a joint committee), now that the Tribunal has determined many of the issues the lack of a resolution of which would previously have impeded a call for tenders.
I have concluded that an order should be made under s 153D determining the sampling process on an interim basis, pending a final determination after the universities desirous of continuing to rely on sampling notices have been identified and the parties have had an opportunity to present further evidence and argument on all outstanding issues. The interim determination should provide for the use of the Nielsen model 2, varied as I have indicated, and for the process to be conducted by A C Nielsen. The forms to be used should be to the effect of those proposed by A C Nielsen, varied as I have indicated. There should
be leave to apply on seven days notice. I direct that Copyright Agency Limited bring in, on a date to be fixed, short minutes of orders appropriate to be made in the light of these reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Decision herein of the Copyright Tribunal constituted by Burchett P. Associate to the President:
Dated: 27 August 1999
Counsel for the Applicant: Mr D K Catterns QC Solicitors for the Applicant: Banki Haddock Fiora Counsel for the Respondents: Mr J Campbell QC with Mr R Cobden Solicitors for the Respondents: Baker & McKenzie Dates of Hearing: 26, 27, 28, 29 July 1999 Date of Decision: 27 August 1999
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