Copyright Agency Limited v University of Adelaide

[1998] ACopyT 1

COMMONWEALTH OF AUSTRALIA
COPYRIGHT ACT 1968

IN THE COPYRIGHT TRIBUNAL	CT 4 of 1997
REFERENCE BY:	COPYRIGHT AGENCY LIMITED under section 153c of the Copyright Act 1968
THE UNIVERSITY OF ADELAIDE, THE 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 (“UNIVERSITIES”) Respondents
TRIBUNAL:	BURCHETT P
PLACE:	SYDNEY
DATE:	15 APRIL 1998

EX TEMPORE REASONS FOR DECISION

BURCHETT P
It does seem to me that there is some merit in Mr Catterns's proposition that it is a little bit premature to decide this application finally at this moment, when he is due to put on evidence in a couple of months time.  We will know more clearly then the outlines of the sampling and statistical evidence from the material that he will be filing.   We will also know whether the material truly raises complex additional problems, or is really part of the web of the problems raised by rates questions.

On the assumption that the evidence will raise broad principles, which would then have to be applied in some detailed and more machinery way to the particular detailed decisions about rates that might ultimately be reached, it would seem to me that it would be useful to have those questions of broad principle in relation to sampling before the Tribunal at the time that it considers the rates.  It would seem to me that, furthermore, the evidence could match the appropriate sampling procedures to the particular decisions otherwise sought and that, provided that does not descend to too much detail, it would be likely to help rather than embarrass any fine tuning which might later be required if no one's preferred position in relation to rates ultimately found its way into the decision of the Tribunal.

With those broad matters of approach in mind, I suggested during argument, and it still seems to me that it may turn out to be the best way to tackle the matter, that the decision might be given in Parts 1 and 2, Part 1 dealing with the issues other than the sampling issues, and Part 2 with the sampling issues.  After the delivery of Part 1 of the decision, there could be a delay of, say, two months to give the parties an opportunity to agree on the sampling procedures that would best match the other decisions reached, and if the parties could not do so, we could then have an appropriate relatively brief time set aside for further debate, either simply by way of submission by counsel, or indeed even involving further submissions by the experts.

I say “submissions” by the experts, having in mind the kind of approach that has been adopted in Competition Law cases, where the evidence of economists, for instance, in the Rugby League Case (News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR 447), was treated as by way of submission rather than as evidence in the more traditional sense. It would seem to me that, just as that proved a manageable way of dealing with the expertise of economists, it might also be a manageable way of dealing with the expertise of statisticians, as applied to the sorts of problems that might be thrown up by the contemplated Part 1 decision.

To the extent that it may be desirable, one could even allow some time, not too lengthy, for oral elaboration.  With all those considerations in mind, what I will do is not make a formal ruling on the present application at this stage, but stand it over until after Mr Catterns's evidence is on, but on the footing that it would be renewed if that evidence enables Mr Cobden to argue that there will be involved more than what I have attempted to outline, and a greater degree of inconvenience to the parties and a greater expenditure of time than what I have suggested.  If no more is raised than questions of broad principle which can be dealt with in this way, then I would contemplate dismissing the application.  I will reserve any question of costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Decision herein of the Copyright Tribunal constituted by Burchett P.

Associate to the President:

Dated:             15 April 1998

Counsel for the Applicant:	Mr D K Catterns QC
Solicitor for the Applicant:	Banki Haddock Fiora
Counsel for the Respondents:	Mr R Cobden
Solicitor for the Respondents:	Baker & McKenzie
Date of Hearing:	15 April 1998
Date of Decision:	15 April 1998