Copyright Agency Limited v University of Adelaide and Ors S12/2000

[2000] HCATrans 596

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S12 of 2000

B e t w e e n -

COPYRIGHT AGENCY LIMITED
ACN 001 228 7999
under section 153C of the Copyright Act 1968

Applicant

and

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, THE 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

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 2000, AT 11.15 AM

Copyright in the High Court of Australia

MR D.K. CATTERNS, QC:  May it please the Court, I appear for the applicant.  (instructed by Banki Haddock Fiora)

MR R. COBDEN:  If it please the Court, I appear for the respondents.  (instructed by Baker & McKenzie)

GLEESON CJ:   Yes, Mr Catterns.

MR CATTERNS:   May it please the Court.  Your Honours, this is a pure question of statutory construction referred to the Full Court of the Federal Court as a question of law by his Honour Justice Burchett as President of the Copyright Tribunal.

GLEESON CJ:   He actually decided the question himself too, did he not?

MR CATTERNS:   He did, your Honour, yes.  Your Honour, it deals with the statutory scheme for educational photocopying, copying which includes photocopying now and soon to include digital copying and, your Honour, it relates to the question when a page of a work is copied which has on it an illustration or an artistic work which illustrates the literary work, say, a poem with an illustration put on that illustrates it in some way.

Your Honours, the reason we submit that this takes the case out of cases where the Full Court of the Federal Court would normally be regarded as the ultimate forum on a question of construction of this type, is that our respectful submission is that the Full Court did not really answer the two questions we seek to propound.

Your Honours, there is no doubt, as their Honours held, that section 135ZM, which I will go to in a moment, as now amended, compels the sharing of the amount paid with respect to that page with the poem and the artistic work.  It compels the sharing of that amount between the owner of copyright in the artistic work and the owner of copyright in the literary work.  Your Honours, we do not seek to challenge what the Full Court also held in answer to the first question, which is that the Copyright Tribunal cannot take into account the artistic work in determining the remuneration.

Your Honours, the second two questions, which are the two special leave questions we propound, are simply whether or not the Tribunal, in determining the remuneration for that page for the copyright in the poem, say, or other literary work, is allowed to take into account the fact that the copyright owner is going to have to disgorge half the money. To put it shortly, your Honours, the job of the Tribunal under section 153C is to determine equitable remuneration. It has been held by his Honour Justice Sheppard, and Justice Burchett in the present case, sitting in the Tribunal, that you can take into account matters such as administrative cost, the cost of collection.

So our case is that there is nothing in 153C, which is a provision under which the Tribunal considers these matters, to say that it cannot take into account the fact that there is a compulsory disgorging of half of what you get. Your Honours, we do not say that means the Tribunal must automatically double it but we submit it is entitled to take that fact into account and the amendment to the Act which brought in a provision for this compulsory sharing, we submit, has nothing to do with, or has no impact upon, the construction of section 153C, which is the section under which the Tribunal considers the matter.

If I could take your Honours briefly to the sections and I will do that quickly.  In Part VB of the Act there is what in the jargon we call a statutory licence for the educational institutions to copy, beginning at 153ZB, which I do not need to take your Honours to for some definitions.  Your Honours, 135ZJ, K and L are in similar structure.  Section 135ZL is simple enough, your Honours, or representative enough.  It says:

Subject to this section, the copyright in a literary…..work –

I am just picking as my poem, your Honours –

is not infringed by the making of one or more copies of the whole or a part of the work by, or on behalf of, a body administering an educational institution if:

(a)  a remuneration notice…..is in force –

I will take your Honours to that –

(b)  the copy is made solely for the educational purposes of the institution –

and the body fills in appropriate records.  Your Honours, there are limits as to what is a reasonable portion, which may be 10 per cent or a chapter but, for example, a poem may be copied under that or perhaps under 135ZK which is “works published in anthologies”.  Section 135ZJ deals with journal articles.  Your Honours, the section that we are considering is ZM and its original form until the amendments in 1998 was just what is now subsection (1) and to paraphrase, your Honours, it says, where an article or another literary work, such as my poem:

is accompanied by an artistic work…..provided for the purpose of explaining or illustrating the article…..the preceding sections…..apply as if –

they included a reference to the artistic work.  So, your Honours, in short, you can copy the accompanying artistic work.  Held by the Full Court, and we do not seek to challenge it, that the intention is that the artistic work is not separately considered in determining payment and before subsection (2) was enacted, the artist got nothing.  Your Honours, in response to representations, the Parliament passed subsection (2) which says, in short, your Honours, “If:  (a)  …..remuneration is paid…..in respect of a page”, in terms of subsection (1), then, your Honour, under (b), “the making of the page is not an infringement” because of, say, ZL, and it includes an artistic work.  Then, in an unusual sort of provision:

the following paragraphs apply:

(d)  one-half of the remuneration paid…..is to be paid to the owner –

of the literary work.  So the poet now gets half of the remuneration and one‑half is to be paid to the artistic work.  Your Honours notice the passive voice.  Probably it means that the collecting society, copyright agency, the applicant, is the person who has to make that division.  May I remind your Honours that under 135ZZB, a collecting society can be declared by the Attorney-General and Copyright Agency Ltd has been.

Your Honours, then a couple of more provisions.  Under 135ZU, the educational institution gives the collecting society an undertaking to pay, and it is called a remuneration notice, specifying either on records keeping whereby they fill in a record for all copying or a sampling system where a sampling system is agreed or determined by the Tribunal.

Then, your Honour, the jurisdiction to determine the royalty is under ZV, “Records notices”, or ZW, “Sampling”. Under section ZV(1), “the amount of equitable remuneration…..for each licensed copy…..is determined by agreement” or the Tribunal. A similar provision in ZW(1), your Honours. Then, finally, your Honours, under section 153C, which is what the Tribunal was doing in the present case, 153C(1) sets out the parties, subsection (2):

Where an application is made –

under ZW(1), which was the present case –

the Tribunal shall consider the application and…..make an order determining the amount that it considers to be equitable remuneration ‑ ‑ ‑

GLEESON CJ:   But is your submission that the moment the legislature introduced this system of requiring a poet to share the remuneration with the artist, what was equitable remuneration, or the amount of equitable remuneration, necessarily increased?

MR CATTERNS:   No, your Honour.  His Honour Justice Burchett held that it was four cents a page.  We submit that when the poem is copied on its own, the poet gets four cents.  When the poem is copied with an artistic work, the poet now gets two.  Now, we are not saying it should be automatically doubled, but if it is equitable to pay four cents for the copying of the poem, it is relevant to consider the fact that the poet now has to give up half.  We see nothing in 135ZM that constrains the Tribunal in its exercise of its discretion under ‑ ‑ ‑

GLEESON CJ:   What was the actual question?

MR CATTERNS:   Your Honours, they are simply found in the form of the order, perhaps, at 265, where the Full Court’s answers are seen.  Your Honour, (a) was answered against us and we do not seek to challenge that.  It is (b) and (c).  Your Honours, often when there is a stated case, one wishes one had worded that question differently, but the form it took, which relates to the construction of section 135ZM, is in that form because his Honour Justice Burchett treated ZM as constraining his Honour’s discretion under 153C.

Your Honours, the reasons we respectfully submit that this is out of the normal tax case or copyright case ‑ your Honours will remember the Lego Case – is that the Full Court, with respect, did not really answer those two questions.  Your Honours, we get this out of the Full Court’s reasons, if I may, under 253 – I am sorry, if your Honours would not mind going to 253.  That is where their Honours begin their consideration of the present question, and your Honours can see that their Honours say, at the bottom of the page, apropos of this question of the form of the question, your Honour:

Although the three questions…..refer to s 135ZM of the Act as if it empowered the Tribunal to determine equitable remuneration, in fact it is, relevantly, s 135ZW that does so.  However, the Tribunal treated s 135ZM(2) as preventing it from determining equitable remuneration –

in the way we contended for.  Then, your Honours, at the bottom of 254, their Honours ‑ ‑ ‑

GLEESON CJ:   I think the first complete sentence on 254 is significant, is it not?

MR CATTERNS:   Yes, your Honour, that is right, with respect.  Your Honours, we do not challenge what is said at the bottom of page 254, paragraph 55, and that is really answering the first of the questions which we do not now seek to agitate.  If your Honours would go to 259, paragraph 71, their Honours say:

the intention revealed by subs (2) is that the amount…..is to be assessed as if it did not include the illustration –

Your Honour, that, we respectfully submit, relates to the first question that the amount is to be paid in equal shares, yes.  Their Honours say:

We think the legislative intention is that there not be an assessment which takes into account different amounts…..the assessment ignore the presence of the illustration.

We agree, your Honours.  So you do not add more value to that page because it is a particularly valuable illustration.  So far, so good, your Honours, but then their Honours say:

the owner of the copyright in the illustration may not be served well –

Our point, your Honour, is that it is the owner of the copyright in the poem who is not served well.  Their Honours then go on and say:

if the determination of the total amount payable could take into account specially that the page include an artistic work…..such an approach would lead to the payment of something more than equitable remuneration to the owner of the copyright in the other work –

We take that to mean, your Honours, a reference to the fact that his Honour Justice Burchett ordered a higher rate for artistic works that appear on their own – 15 cents.  So if you halved 15 cents, the poet would get seven and a half cents instead of four.  But that is not our case, your Honour.  We agree with the next sentence:

the legislature has seen fit to provide for assessment of the remuneration based on the “principal” work –

which we take to be the poem, and our simple case is, your Honour, that ought to be assessed as equitable remuneration, taking into account the fact that you are going to have to halve it.  Finally, their Honours refer to the second reading speech and, your Honours, I think, in particular, at 260, about line 30, their Honours say:

It is arguable that artists are already entitled, however, to payment –

and the Full Court does not agree with that, but it does not matter:

If the section were to be repealed, it would be left to the courts to decide whether artists should receive remuneration.  The government’s amendments will ensure that artists receive remuneration without imposing additional costs on education institutions.

Your Honours, we would respectfully submit that the sentence, or half of it – it says “without imposing additional costs”, cannot, via section 15AB of the Acts Interpretation Act, read into 153C or 135ZW, which are the jurisdiction sections, some gloss which is not there.  Your Honours, we respectfully submit that their Honours appear to do that at 261 in the two dots.  We do not disagree with the first dot point which refers to the old form of the Act, nor do we disagree with most of the next dot, that:

the addition of subs (2) was to compel equal sharing between the two classes of copyright owner –

but their Honours seem to get from the second reading speech the phrase “which would have otherwise been payable” and get from that an idea that you cannot get any higher.  Then their Honours answers are at the top of page 262, after saying that the equitable remuneration has to “be shared equally”, which is right, their Honours answer to questions (a), (b) and (c), we respectfully submit, that that reasoning does not really bite upon (b) and (c).  Your Honours, as I ‑ ‑ ‑

McHUGH J:   But it really comes down to this, does it not?  That if your argument is right, that the education authority has to pay more when you have a work accompanied by an artistic work than the case when the work is on its own.

MR CATTERNS:   Yes, your Honour, except, might have to, depending on what the Tribunal decides.  It could decide four cents.

McHUGH J:   Well, might have to.

MR CATTERNS:   Yes.  It can take into account the interests of the education institution.

McHUGH J:   So your argument comes to this, that notwithstanding that the purpose of the amendment was to give a benefit to the artist, it may well result in extra cost to the education authority, notwithstanding that the Minister, when introducing the Bill, said it would not.

MR CATTERNS:   Yes, your Honour, but somebody has to suffer.  It is either the poet or the education institution and our simple submission is that we cannot see anything in the legislation that fetters the Tribunal, which has this job, from working out the balance.  Just finally, your Honours, we submit it is a matter of public importance because this involves every education institution and through Copyright Agency all of the relevant copyright owners.  May it please the Court.

GLEESON CJ:   We do not need to hear you, Mr Cobden.

The four members of the Federal Court who considered the question of statutory interpretation raised by this case were unanimous in their view on that matter.  They gave cogent reasons for their views and there is no occasion for this Court to intervene.  The application must be dismissed with costs.

We are going to adjourn to reconstitute.

AT 11.33 AM THE MATTER WAS CONCLUDED