Copyright Agency Limited v University of Adelaide & Ors(with Corrigendum dated 27 August 1997)
[1997] ACopyT 3
•11 July 1997
CATCHWORDS
COPYRIGHT - statutory licence scheme in Part VB - educational institutions permitted to make copies of works under scheme - scheme operates when educational institution issues a remuneration notice to a collecting society - whether educational institution can issue a limited remuneration notice - whether educational institution can have more than one notice in force at a particular time with respect to a particular collecting society
Copyright Act 1968: Part VB
APPLICATION 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 OF SYDNEY, VICTORIA UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF WESTERN AUSTRALIA, THE UNIVERSITY OF WESTERN SYDNEY, UNIVERSITY OF WOLLONGONG (‘THE UNIVERSITIES’)
LOCKHART J
SYDNEY
11 JULY 1997
IN THE COPYRIGHT TRIBUNAL No. 5 of 1996
APPLICATION 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 OF SYDNEY, VICTORIA UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF WESTERN AUSTRALIA, THE UNIVERSITY OF WESTERN SYDNEY, UNIVERSITY OF WOLLONGONG (‘THE UNIVERSITIES’)
Respondents
LOCKHART J.
SYDNEY
11 JULY 1997
MINUTE OF ORDER
THE TRIBUNAL ORDERS THAT:
Copyright Agency Limited is directed to bring in short minutes of order to give effect to the Tribunal’s reasons for decision on a date to be fixed.
The matter be adjourned to that date.
IN THE COPYRIGHT TRIBUNAL No. 5 of 1996
APPLICATION 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 OF SYDNEY, VICTORIA UNIVERSITY OF TECHNOLOGY, THE UNIVERSITY OF WESTERN AUSTRALIA, THE UNIVERSITY OF WESTERN SYDNEY, UNIVERSITY OF WOLLONGONG (‘THE UNIVERSITIES’)
Respondents
11 July 1997
REASONS FOR DECISION
LOCKHART J:
The Copyright Tribunal (‘the Tribunal’) was asked by the parties to determine some preliminary questions in this matter. The questions arise in the application by Copyright Agency Limited (‘CAL’) (a collecting society for authors and publishers) to the Tribunal to determine:-
the amount of equitable remuneration payable to CAL by the respondents, collectively referred to as ‘the Universities’, for the licensed copying of works by the Universities; and
the sampling system to be used for the purpose of assessing the number of licensed copies made by the Universities.
The application concerns the statutory licences scheme in Part VB of the Copyright Act 1968 (‘the Act’) which permits educational institutions to make multiple copies of works or parts of works for the purpose of courses of education provided by them. I shall discuss the origins of the scheme and the detail of it later.
It is sufficient at present to say that an educational institution (through the body which administers it, called an ‘administering body’ by s 135ZB of the Act) may give a notice called a ‘records notice’ or a notice called a ‘sampling notice’ (expressions defined in s 135ZB). A records notice involves the educational institution in keeping records of the copies of documents made by it. A sampling notice given by the administering body of an educational institution enables the institution and the relevant collecting society to determine by agreement the equitable remuneration payable by the institution to the copyright owner or its collecting agent on the basis of an annual amount per student of the institution concerned.
The parties have agreed on certain facts which I shall state, followed by the questions which the Tribunal has been asked to determine. The agreed facts take Deakin University as the particular tertiary institution to which attention may be directed for the purpose of this preliminary hearing. All other educational institutions which are respondents are in the same position as Deakin University. Hence, the answers to these questions will determine the questions for all universities which are respondents.
The agreed facts are as follows:
1. Deakin University is a body administering an educational institution within the meaning of s 135ZL and Part VB of the Act.
2. The applicant, Copyright Agency Limited, is the relevant collecting society for the purposes of s 135ZL of the Act.
3. Deakin University has given the following ‘Remuneration Notices’ (a notice by the relevant educational institution to the relevant collecting society undertaking to pay equitable remuneration to the society for making licensed copies; the notice being either a records notice or a sampling notice: s 135ZU and the definition of ‘remuneration notice’ in s 135ZB), each of which is now in force:
a sampling notice given under s 135ZW received by CAL on 15 December, 1994 and expressed to operate from 1 January, 1995, undertaking to pay equitable remuneration for ‘licensed copies (other than licensed copies made by electronic, magnetic or digital means for the purpose of database storage or retrieval)’;
a records notice given under s 135ZV received by CAL on 5 February, 1996 and expressed to operate from 1 January, 1996, undertaking to pay equitable remuneration for ‘licensed copies of material held in Closed Reserve by electronic, magnetic or digital means for the purpose of database storage and retrieval’; and
a records notice given under s 135ZV received by CAL on 5 February, 1996 and expressed to operate from 1 January, 1996, undertaking to pay equitable remuneration for ‘licensed copies made by electronic, magnetic or digital means for the purpose of electronic storage for subsequent printing’.
4. For the purposes of the preliminary questions only, the parties agree that Deakin University and CAL have failed to agree the amount of equitable remuneration payable to CAL under any of the remuneration notices specified in paragraph 3.
The questions which the Tribunal is asked to determine are as follows:
A. Whether the effect of the remuneration notices is that the only licensed copies for which the Tribunal may determine the amount of equitable remuneration are:
licensed copies (other than licensed copies made by electronic, magnetic or digital means for the purpose of database storage or retrieval);
licensed copies of material held in Closed Reserve by electronic, magnetic or digital means for the purpose of database storage and retrieval; and
licensed copies made by electronic, magnetic or digital means for the purpose of electronic storage for subsequent printing.
B. Whether copying by or on behalf of Deakin University of not more than a reasonable portion (as that phrase is defined in the Act) of a work, for the purpose of research or study, is licensed copying for which remuneration is payable under Part VB of the Act.
Although the Tribunal was asked initially to determine both questions A. and B., the parties have agreed that question B. should not be argued or answered, at least at this stage. Hence question A. is the only question for present determination.
I propose first to give a brief historical sketch of Part VB to explain why it came into being in the form which it presently takes. This will involve a fairly detailed analysis of the relevant provisions of Part VB. After this I will turn specifically to question A.
The History of Part VB
The starting point must be the report of the Copyright Law Committee on Reprographic Reproduction (the Franki Committee Report) of October 1976.
The Franki Committee Report followed considerable changes in methods of reprographic reproduction of published material in Australia and internationally. Technology had improved to the point where copying was no longer confined to laborious methods of copying by hand or typewriting, or other slow and expensive methods of copying; and enabled bodies, including educational institutions, to make large numbers of copies due to the advantage of improved methods of technology; but left copyright owners without any effective means of obtaining reward for the reproduction of their works. The Frank Committee noted in its report (para. 1.52) that the evidence before it indicated that it was likely that some of the copying taking place in educational institutions was an infringement of copyright under the then law and that the demand for such copying would increase. The Committee said that multiple copying should not be carried out without remuneration to the copyright owner in any case where it represented a substantial use of his property.
The Franki Committee therefore recommended (para. 1.53) that the Act should be amended to provide for a statutory licence scheme, permitting non-profit educational institutions to make multiple copies of parts of a work and in some cases whole works, for classroom use or for distribution to students, subject to recording any copying which takes place under the scheme and an obligation of the institution to pay an appropriate royalty if demanded by the copyright owner or his agent. See paras. 6.39 to 6.66 of the Franki Committee Report.
The Committee proceeded on the basis that there was a real public interest in ensuring a free flow of information in education and research; and that the interests of individual copyright owners must be balanced against that element of public interest (para. 1.02).
The Act was subsequently amended by the introduction of Part VB; but the scheme was found cumbersome to operate and costly to administer because of the complexity of the requirements concerning the keeping of records. Both the educational institutions and copyright owners were dissatisfied with the scheme, so the Federal government examined the feasibility of a revised scheme which could operate along similar lines to the scheme in force for copying of television programmes.
Hence the Act was amended by the Copyright Amendment Act 1989 (Act No 32 of 1989) following recommendations in the 1986 Report of the Senate Standing Committee on Education and the Arts on Audio-Visual Copying by Educational Institutions. It followed extensive discussions between copyright owners, educational interests and the Federal government. As the Second Reading Speech of the then Attorney-General indicated (Hansard, House of Representatives, 3 November 1988, 2392-2397), the revised scheme was based largely on voluntary agreements already entered into between CAL and a substantial number of educational institutions throughout Australia. Co-operation had been largely achieved by abandoning the record keeping requirements of the earlier scheme under which payments were required for actual copying. Instead, payments were being made on the basis of agreed sampling schemes whereby estimates could be made of the amount of copying and payment made on a per student basis.
The amendments introduced by the 1989 Act facilitated those voluntary arrangements and ensured that they could operate effectively under the legislation. The intention was that the relevant collecting societies would represent the copyright owners of the particular class of copyright and would enable institutions to pay for copying on a per student basis or, if desired, by full record keeping. If full record keeping was opted for, records would be required to be sent to the relevant collecting society for assessment.
The legislative scheme
Part VB is entitled ‘COPYING OF WORKS ETC BY EDUCATIONAL AND OTHER INSTITUTIONS’. It commences with the interpretation provision, s 135ZB, and concludes with s 135ZZH.
Part VB empowers an educational institution, through its administering body, to give notice in writing (a remuneration notice) to the relevant collecting society whereby it undertakes to pay equitable remuneration to the society for licensed copies made by it or on its behalf, being copies made while the notice is in force.
A remuneration notice shall specify whether the amount of equitable remuneration is to be assessed on the basis of a records system or a sampling system (s 135ZU(2)). A remuneration notice comes into force on the day in which it is given to the collecting society or on such later day as is specified in the notice, and it remains in force until it is revoked (s 135ZU(3)).
The expression ‘records notice’ is defined as meaning a remuneration notice specifying that the amount of equitable remuneration payable to the collecting society by the administering body giving the notice is to be assessed on the basis of a records system (s. 135ZB).
The expression ‘sampling notice’ is defined, also by s 135ZB, as meaning a remuneration notice specifying that the amount of equitable remuneration payable to the collecting society by the administering body giving the notice is to be assessed on the basis of a sampling system.
The expressions ‘records system’ and ‘sampling system’ are not defined.
If a records notice is given by an administering body, the amount of equitable remuneration payable to the relevant collecting society by the administering body for each licensed copy made by it or on its behalf while the notice is in force, is such amount as is determined by agreement between the administering body and the collecting society or, failing such agreement, by the Tribunal, on application made by either of them (s 135ZV(1)). For the purposes of sub-s (1), different amounts may be determined, whether by agreement or by the Tribunal, in relation to different institutions administered by the administering body and different classes of students of an institution administered by it (s 135ZV(2)).
Where a sampling notice is given, the amount of equitable remuneration payable by the administering body whilst the notice is in force is such annual amount per student of the institution concerned as is determined by agreement between the administering body and the relevant collecting society or, failing such agreement, by the Tribunal, on application made by either of them (s 135ZW(1)). The expression ‘annual amount’ referred to in sub-s (1) shall be determined, whether by agreement or by the Tribunal, having 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 (s 135ZW(2)). The number of copies referred to in sub-s (2) and any other matters that are necessary or convenient to be assessed by use of a sampling system shall be assessed by use of a sampling system determined by agreement between the administering body and the relevant collecting society or, failing such agreement, by the Tribunal (s 135ZW(3)). For the purposes of sub-s (1) different annual amounts may be determined whether by agreement or by the Tribunal in relation to different institutions administered by the administering body and different classes of students of an institution administered by it (s 135ZW(4)).
A remuneration notice may be revoked at any time by the relevant administering body by notice in writing to the relevant collecting society, and the revocation takes effect at the expiration of three months after the date of the notice or on such later day as is specified in the notice (s 135ZZ).
‘Licensed copy’ is defined by s 135ZB as meaning, so far as presently relevant, a copy of the whole or a part of a work, being a copy made by or on behalf of, a body administering an educational institution in reliance on s 135ZJ, 135ZK or 135ZL.
Sections 135ZJ, 135ZK and 135ZL are important.
Section 135ZJ provides that copyright in an article contained in a periodical publication is not infringed by the making of one or more copies of the whole or a part of that article by or on behalf of a body administering an educational institution if (a) a relevant remuneration notice is in force, (b) the copy is made solely for the educational purposes of the institution and, (c) the body complies with the marking and record keeping requirements imposed by s 135ZX.
Section 135ZJ does not apply in relation to copies of, or of parts of, two or more articles contained in the same periodical publication unless the articles relate to the same subject matter.
Section 135ZK concerns the multiple copying of works published in anthologies. That section provides that the copyright in a literary or dramatic work, being a work contained in a published anthology of works and comprising not more than fifteen pages in that anthology, is not infringed by the making of one or more copies of the whole or a part of that work by, or on behalf of, a body administering an educational institution if the same three conditions to which reference was made in s 135ZJ(1) are observed.
Section 135ZL provides that copyright in a literary, dramatic, musical or artistic work, other than articles contained in a periodical publication, 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 the three conditions to which reference has been made are observed.
The Attorney-General is empowered to declare the body named by notice in the Gazette to be the collecting society for all relevant copyright owners or for such classes of relevant copyright owners as are specified in the notice (s 135ZZB(1)). The Attorney-General may, by notice in the Gazette, revoke such declaration (s 135ZZC).
The Tribunal’s power to consider applications made to it for determination of equitable remuneration pursuant to remuneration notices, being either records notices or sampling notices, is conferred by s 153C.
This sufficiently outlines the legislative scheme relevant to the determination of the questions presently before the Tribunal.
The purported remuneration notices
By agreement dated 11 December 1995 between CAL and the Australian Vice-Chancellors’ Committee (‘AVCC’) (a company limited by guarantee, the members of which are vice-chancellors of tertiary institutions), agreement was reached concerning the arrangements between CAL and the relevant institutions for the making by the institutions of licensed copies for educational purposes, and for the calculation and payment of equitable remuneration to CAL for those licensed copies. It is not necessary to refer to the detail of the agreement.
Three documents, purporting to be remuneration notices, were given by Deakin University to CAL pursuant to s 135ZU of the Act.
One notice is relevantly in these terms:
‘Deakin University (the educational institution) undertakes to pay equitable remuneration to Copyright Agency Limited (CAL) for licensed copies (other than licensed copies made by electronic, magnetic or digital means for the purpose of database storage or retrieval) made by or on behalf of the Educational institution under Part VB, being licensed copies made while this Notice is in force.
The amount of equitable remuneration is to be assessed on the basis of a sampling system and at a rate as agreed between the Educational institution and CAL.
This notice comes into force on and from 1 January 1995 and remains in force until it is revoked by the Educational institution under s 135ZZ of the Act.’
The second notice given by Deakin University is relevantly as follows:
‘undertakes to pay equitable remuneration to ... CAL ... for licensed copies made of material held in Closed Reserve by electronic, magnetic or digital means for the purpose of database storage and retrieval, made by or on behalf of the Educational Institution under Part VB, being licensed copies made while this Notice is in force.
The amount of equitable remuneration is to be assessed on the basis of a record-keeping system and at a rate as agreed between the Educational Institution and CAL.
This Notice comes into force on and from 1 January 1996 and remains in force until it is revoked by the Educational Institution under s 135ZZ of the Act.’
The third notice with which the case is concerned was also given by Deakin University to CAL and relevantly provides that Deakin University:
‘Undertakes to pay equitable remuneration to ... CAL ... for licensed copies made by electronic, magnetic or digital means for the purpose of electronic storage for subsequent printing, made by or on behalf of the Educational Institution under Part VB, being licensed copies made while this Notice is in force.’
The remaining paragraphs of the notice mirror the last two paragraphs of the second notice.
Submissions of the parties
Counsel for the universities argued that upon the proper construction of the relevant provisions of Part VB a particular administering body of an educational institution can have more than one notice in force at a particular time with respect to a particular collecting society. There is nothing to be discerned, so it was contended, in the legislation which would prohibit the issuing of notices that are limited in their scope or notices that do not apply to the whole universe of ‘licensed copies’ potentially covered by ss 135ZJ, 135ZK and 135ZL. Counsel also, however, fairly conceded that there is equally no express provision allowing the issue of limited or concurrent records notices or sampling notices.
Counsel for the universities pointed to the fact that it is the educational institution that is empowered to give a remuneration notice, not the collecting society itself; and it remains in force for so long as the educational institution wishes it to remain in force, subject to the three months constraint imposed by s 135ZZ to which reference was made earlier.
Counsel also submitted that the primary objective of Part VB is to preserve the interest of educational institutions and that, because many situations may arise where there is a variety of works in respect of which copyright may apply, it will be more convenient for the universities to have record notices with respect to the copying of certain works and sampling notices with respect to other works. In other words, sometimes it may be convenient for the universities to keep the traditional detailed records, and in other cases it may be better for them to adopt the sampling approach per head of student population. Reliance was placed upon the definition of ‘licensed copy’ in s 135ZB and in particular the words ‘in reliance of’ appearing in that definition.
Counsel for the universities also drew attention to the fact that there may be more than one relevant ‘collecting society’ dealing with a university. That expression is defined in s 135ZB as meaning in relation to a remuneration notice the collecting society for the owners of the copyright in works, or other subject matter, of the same kind as that to which the remuneration notice relates. Since the Attorney-General may, under s 135ZZB(1), name a body to be the collecting society only for a particular class or classes of copyright owners as is specified in the notice, it follows that an administering body may be required to issue a remuneration notice under s 135ZU(1) that relates only to particular works or kinds of works rather than to a universe of works comprehended by ss 135ZJ, 135ZK and 135ZL.
Counsel for CAL submitted that the history of Part VB and the language of certain of its sections do not support the argument advanced by the universities that a university can choose to rely on the licence provided by Part VB for some, but not all, of the copying which could possibly be conducted under that licence. CAL submitted that the scheme of Part VB is that an educational institution can elect whether or not it desires to avail itself of the statutory licence conferred by ss 135ZJ, 135ZK and 135ZM. If it does not do so, it runs the risk of infringement (s 36(1)) or it can obtain the licence of a relevant copyright owner to make copies of relevant works under s 135ZZF.
Counsel for CAL also submitted that, if an institution elects to rely on a Part VB scheme, it must give a remuneration notice under s 135ZU and that notice must specify whether equitable remuneration is to be assessed on the basis of a records system or a sampling system. The scheme is intended to be a blanket scheme covering the whole of an institution’s copying of the works of all relevant copyright owners under a statutory licence. Reliance was placed by counsel for CAL on the language of s 135ZJ(1)(a), s 135ZK(a) and s 135ZL(1)(a) on the basis that, for the universities’ argument to succeed, there must be implied into those three provisions words such as:
‘a remuneration notice, with respect to the making of copies in circumstances which include the circumstances in which the copies are made ... is in force’.
Other detailed arguments concerning the construction and operation of the Act were put on behalf of the Universities and CAL both in written submissions and orally. I need not refer to them in detail as I have taken them all into account.
Findings
In my opinion the argument advanced on behalf of CAL is correct. The scheme introduced by Part VB, as subsequently amended, was intended to operate in the public interest to protect both the need for copyright owners to be remunerated for the use of copyright material and to facilitate educational institutions having easy access to copyright material for teaching purposes. It is important to remember that the Part VB involves a statutory licensing scheme.
In place of the earlier scheme whereby full and detailed records had to be kept by educational institutions of all copies made by them, involving a great deal of labour and money, the sampling system was offered as an alternative. Each educational institution, in so far as it deals with a particular collecting agency with respect to a particular class of copyright, is no longer confined to keeping detailed records, but may opt for the sampling basis which is determined by reference to student population.
The option is given by the Act either to have equitable remuneration determined on the old basis or on the sampling basis; but it seems to me this must be in respect of one remuneration notice between each educational institution and each collecting society in force at any one time. Otherwise the curious anomalies to which reference was made by counsel for CAL will emerge, especially the problems concerning the construction of 135ZJ(1)(a), 135ZK(a) and 135ZL(1)(a). There is force in the contention of counsel for the CAL that it is necessary to read words into those provisions if the argument for which the educational institutions contend is correct. Whether they be the words to which reference was made earlier or words such as ‘which relates to copies which have been made’ as was suggested in oral argument, does not matter. Those three sections are critical sections because they ensure that copyright is not infringed by the making of multiple copies by educational institutions, on the assumption that a remuneration notice (whether it be a records notice or a sampling notice) has been given by a particular institution to a particular collecting body and is in force. Upon the proper construction of the three sections, the notice must cover all classes of copyright in the relevant articles as between the education institution and the particular collecting society.
In my view, s 23 of the Acts Interpretation Act 1901, which provides that words in the singular number include the plural and words in the plural number include the singular, give little assistance in this case. To the extent that s 23 does have a bearing upon the matter, in my view, when it is applied to ss 135ZU(1), (2) and (3), 135V(1), 135ZW(1) and (5) and 135ZB, where reference is made to ‘notice in writing’ (s 135ZU(1)), ‘a remuneration notice’ (s 135ZU(2) and (3)), ‘a records notice’ (s 135ZV(1)), ‘a sampling notice’ (s 135ZW(1) and (5)) and the definitions of ‘remuneration notice, ‘records notice’ and sampling notice’ in s 135ZB and like expressions, a contrary intention is manifested. In my opinion, the obvious legislative scheme is a single election with respect to each educational institution and each relevant society.
The construction for which the universities contend could lead, in my opinion, to confusion and unworkability of the statutory licence scheme.
In my opinion ss 135ZJ, 135ZK and 135ZL do not comprehend, as the universities submit, a ‘universe of works’; rather, they comprehend all the works in the particular class for which the relevant collecting society has been declared pursuant to s 135ZZB(1).
The scheme of Part VB is that an education institution can elect whether or not it desires to avail itself of the statutory licence conferred by s 135ZJ, s 135ZK or s 135ZM. If it does not do so, it runs the risk of infringement (s 36(1)) or it can obtain the licence of the relevant copyright owners (s 135ZZF).
Once an educational institution decides to rely on the Part VB scheme, then it gives a remuneration notice under s 135ZU. That notice must specify whether equitable remuneration is to be assessed on the basis of a record system or a sampling system. In my opinion, the scheme is intended to be a blanket scheme covering the whole of an educational institution’s copying of the works of all relevant copyright owners under a statutory licence involving the particular collecting society.
My view is supported when it is remembered that, if the Universities are correct, a university can give a multiplicity of remuneration notices to the one collecting society, whether record notices or sampling notices or both, with respect to a host of factual situations concerning the copying of works, and all this unilaterally by the particular university concerned. The description of the works embraced by a particular notice may be clear to the university, but not so clear to the collecting society; and that description may make the task of monitoring difficult.
Counsel for CAL argued that, if CAL’s arguments are preferred, then the three remuneration notices which have been given may be read down by the application of the blue pencil rule so as to render them valid. The problem with this argument is that each of the notices was issued by Deakin University in the terms which it presently bears, and not otherwise. So the notices can be revoked whenever Deakin University wishes, though subject to the three month constraint mentioned earlier. To apply the blue pencil rule would seem to me to be contrary to the tenor of the three notices; and I decline to do so.
As discussed in oral argument I shall not formally answer question A, but stand the matter over for a short time so that the parties may consider these reasons and agree upon the appropriate answer to the question.
On the question of costs, neither the universities nor CAL seeks an order for costs against the other, so there shall be no order as to costs.
The only orders made by the Tribunal today are that CAL is directed to bring in short minutes of order to give effect to the Tribunal’s reasons for decision on a date to be fixed and that the matter be adjourned to that date.
I hereby certify that this and the preceding twenty-four (24) pages are a true copy of the reasons for decision of the Honourable Justice Lockhart
Associate: Dated: 11 July 1997
Counsel for the Applicant : Mr D K Catterns QC
Solicitors for the Applicant: Banki Polambi Haddock and Fiora
Counsel for the Respondents: Mr J J Spigelman QC
Mr R Cobden
Solicitors for the Respondents: Baker & Mackenzie
Date of Hearing: 6 June 1997
Date of Judgment: 11 July 1997
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