Copyright Agency Ltd v University of Adelaide

Case •

[1999] FCA 1818

•

22 DECEMBER 1999

FEDERAL COURT OF AUSTRALIA

Copyright Agency Ltd v University of Adelaide [1999] FCA 1818

COPYRIGHT – Copyright Tribunal – Part VB of Copyright Act 1968 – determination by Tribunal of amount of equitable remuneration payable by bodies administering educational institutions to collecting society for copyright owners in respect of copying of works licensed by the Act – whether, under ss 135ZW and 153C, where the administering body has given a sampling notice, the Tribunal is empowered to make a determination which differentiates between different categories of work – whether consistently with s 135ZM the Tribunal is empowered to determine an increased amount on account of the fact that the work contains an explanatory or illustrative artistic work on the same page as the whole or part of a non-artistic work.

Copyright Act 1968 (Cth) Part VB (esp ss 135ZG-135ZM, 135ZU-135ZW) and s 153C

Copyright Agency Ltd v Department of Education of New South Wales (1985) 4 IPR 5, cited
Copyright Agency Ltd v University of Adelaide (1999) 42 IPR 529, cited

COPYRIGHT AGENCY LIMITED v THE UNIVERSITY OF ADELAIDE & ORS

N 733 of 1999

N 985 of 1999

FRENCH, HEEREY, AND LINDGREN JJ

22 DECEMBER 1999
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 733 OF 1999

BETWEEN:

COPYRIGHT AGENCY LIMITED (ACN 001 228 799)
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

Respondents

JUDGE:

FRENCH, HEEREY, AND LINDGREN JJ

DATE OF ORDER:

22 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ANSWERS THE QUESTIONS REFERRED TO IT UNDER s 161 of the Copyright Act 1968 (Cth) as follows:

Questions:

(a)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for artistic works to which section 135ZM of the Act applies;

(b)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for literary works that contain illustrations to which section 135ZM of the Act applies; and

(c)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for a page referred to in subsection 135ZM(2).”

Answers:

(a)No

(b)No

(c)No

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

N 985 OF 1999

BETWEEN:

COPYRIGHT AGENCY LIMITED (ACN 001 228 799)
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

Respondents

JUDGE:

FRENCH, HEEREY, AND LINDGREN JJ

DATE OF ORDER:

22 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ANSWERS THE QUESTION REFERRED TO IT UNDER s 161 of the Copyright Act 1968 (Cth) as follows:

Question:

Whether it is within the power of the Copyright Tribunal, when determining pursuant to section 135ZW of the Act the ‘annual amount per student of the institution concerned’ (in relation to a period up to 30 July 1998), or the ‘annual amount’ (in relation to any period after 30 July 1998) (together, the ‘annual amounts’), to do so by reference to a formula which places different monetary values per page on copies of different types of works or copies made for different purposes (such as print music, artistic works copied onto paper, artistic works copied onto slides, literary works copied for the purpose of inclusion in a coursepack, and literary works copied for purposes other than inclusion in a coursepack).

Answer:

Yes

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

N 733 OF 1999
N 985 OF 1999

BETWEEN:

COPYRIGHT AGENCY LIMITED (ACN 001 228 799)
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

Respondents

JUDGE:

FRENCH, HEEREY, AND LINDGREN JJ

DATE:

22 DECEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

Introduction

  1. There are before the Court two stated cases. In both, the Australian Copyright Tribunal (“the Tribunal”) refers to the Court questions of law pursuant to s 161 of the Copyright Act 1968 (Cth) (“the Act”). The questions of law arose in proceeding CT 4 of 1997 between the applicant (“CAL”) and the respondents (“the Universities”). In that proceeding, CAL, a “collecting society” for the purposes of Part VB of the Act, applied to the Tribunal for the determination of the amount of equitable remuneration payable to it by the Universities for the making, by or on behalf of them, of licensed copies of certain works.

  2. On 2 February 1999, the President of the Tribunal published his Reasons for Decision on CAL’s application (see Copyright Agency Ltd v University of Adelaide (1999) 42 IPR 529). Those Reasons concluded as follows (at [49]):

    “ … I shall adjust the basic rate from the indexed figure of 3.562 cents per page [which resulted from an existing determination] to 4 cents per page.  I have already decided to fix a higher rate for coursepack copying; that rate will be 5 cents per page.  For the copying of artistic works and print music, whether or not to be included in coursepacks, I shall fix a rate of 15 cents per page, except where an artwork is copied onto a slide, in which case I shall fix the amount of $1 per slide.  Each of these figures should be subject to indexation by reference to the Consumer Price Index, in order to preserve the full measure of the equitable remuneration I have determined: see Audio-Visual Copyright Society Ltd v New South Wales Department of School Education [(1997) 37 IPR 495] at 521.”

  3. It will be noted that the Tribunal was proposing to determine different rates according to the nature of the work in question.  Elsewhere in its Reasons, it declined CAL’s invitation to take into account a separate rate for accompanying artistic works which explained or illustrated the text, whether on the same page as the text or otherwise.  It is these two aspects of the Tribunal’s Reasons for Decision that have given rise to the stated cases.

  4. The Tribunal directed CAL to bring in short minutes of orders to be made. What transpired, however, was that first CAL, and then the Universities, made requests, as they were entitled to do under s 161 of the Act, that the Tribunal refer questions of law to this Court for determination. The questions of law that CAL requested the Tribunal to refer, and which are the subject of proceeding N 733 of 1999, are as follows:

    “(a)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for artistic works to which section 135ZM of the Act applies;

    (d)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for literary works that contain illustrations to which section 135ZM of the Act applies; and

    (c)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for a page referred to in subsection 135ZM(2).”

    Clearly, these questions can be understood only by reference to the terms of s 135ZM.  We will set out that section later.

  5. The question of law which the Universities requested the Tribunal to refer to the Court, and which is the subject of proceeding N 985 of 1999, was as follows:

    “whether it is within the power of the Copyright Tribunal, when determining pursuant to section 135ZW of the Act, the ‘annual amount per student of the institution concerned’ (in relation to a period up to 30 July 1998), or the ‘annual amount’ (in relation to any period after 30 July 1998) (together, the ‘annual amounts’), to do so by reference to a formula which places different monetary values per page on copies of different types of works or copies made for different purposes (such as print music, artistic works copied onto paper, artistic works copied onto slides, literary works copied for the purpose of inclusion in a coursepack, and literary works copied for purposes other than inclusion in a coursepack).”

    We will set out the terms of s 135ZW later.

  6. Both stated cases were heard together.  As on the hearing before us, the case stated pursuant to the Universities’ request will, in due course, be addressed first.

    General background

  7. When the Act commenced to operate on 1 May 1969 it did not contain provisions of the kind with which we are presently concerned, that is, provisions excluding from the ambit of infringement of copyright the multiple copying of works by educational institutions for educational purposes. The Act did exclude from the ambit of infringement certain kinds of “fair dealing”, one of which was fair dealing for the purpose of research or private study. No doubt some photocopying of works in university libraries would have been within that exclusion, but that is another matter.

  8. CAL was incorporated in 1974 with the support of the Australian Copyright Council Ltd, the Australian Society of Authors and The Australian Book Publishers’ Association.  Its members were and are authors and publishers.  Its purpose was to obtain agency appointments from copyright owners to enable it to license photocopying by educational institutions and organisations.

  9. The genesis of the provisions with which we are concerned was a report in October 1976 of the Copyright Law Committee on Reprographic Reproduction chaired by the late Justice Franki, at the time a Judge of the Australian Industrial Court.  CAL made submissions to the Franki Committee. 

  10. The Franki Committee recommended the adoption of a statutory licensing scheme which would exempt from the ambit of infringement the making of copies by educational institutions for their purposes of published literary, dramatic or musical works (not artistic works) subject to certain quantitative limits according to the circumstances of the case. Copying would ordinarily be “reproduction in a material form” and therefore an infringement of copyright of a work of any of the four classes of work: see ss 31(1)(a)(i) and (b)(i), and 36 of the Act.

  11. Such a scheme was enacted by the Copyright Amendment Act 1980 (Cth) (No 154, 1980). The relevant amendments came into force on 1 August 1981. The amending Act introduced Division 5A (ss 53A-53C) into Part III of the Act. Section 53A provided that copyright in a literary or dramatic work was not infringed by the making, on the premises of an educational institution by any person for the purpose of a course of education provided by the institution, of a copy or copies of a page or pages of the work in an edition of the work, or of works that included the work, provided what was copied was an insubstantial (as defined) part. Section 53B was the critical provision which provided for the statutory licence in favour of educational institutions and forms part of the background to s 135ZW with which we are concerned. Section 53C provided specially in relation to the treatment of artistic works which accompanied an article or other literary, dramatic or musical work to which the preceding sections of the Division applied, and which were provided for the purpose of explaining or illustrating that article or other work. Section 53C provides part of the background to s 135ZM with which we are concerned.

  12. There were constraints on the exclusion from scope of infringement enacted by s 53B.  Importantly, the exception did not apply unless the body administering the educational institution had made a record of the copying setting out certain particulars.  The section provided for payment of “an amount by way of equitable remuneration” by the body administering the educational institution to the owner of the copyright, which, in default of agreement, was to be as determined by the Tribunal on the application of either party.

  13. We will have occasion to discuss ss 53A, 53B and 53C in more detail later in these reasons.

  14. In 1985, the Tribunal (Sheppard J) determined the amount of equitable remuneration payable on the basis of an amount per page (2 cents, indexed to the Consumer Price Index): see Copyright Agency Ltd v Department of Education of New South Wales (1985) 4 IPR 5. In fact, s 53B(11) spoke only of “equitable remuneration for the making of [the] copies [of the whole or a part of a work]” but a “per page” basis was probably inevitable.

  15. The statutory licensing scheme under s 53B was found to be difficult to administer.  The record keeping obligation imposed on the educational institutions was onerous.  Moreover, CAL could represent only those copyright owners who had authorised it to do so and it had to maintain a repertoire of all the works in respect of which it had such authorities from copyright owners.  Apparently, as a means of overcoming these problems, CAL and the Universities reached agreement on a sampling system according to which equitable remuneration was in fact calculated and paid.

  16. Sampling received legislative recognition when the Act was amended in 1989. Division 5A of Part III was repealed and a new Part VB was introduced by the Copyright Amendment Act 1989 (Cth) (No 32, 1989). These amendments came into force on 1 July 1990. Under the new scheme, but not under the previous one, the exclusion from infringement depended upon the body administering an educational institution having given notice in advance. The limited representative capacity of CAL and the need for it to maintain a repertoire of works were also addressed. The Attorney-General was empowered to declare a body to be the collecting society for all the copyright owners or for such classes of them as were specified in the notice, that is, whether or not they had in fact authorised the collecting society to represent them. On 13 June 1990, the then Attorney-General, under s 135ZZB(1) of the Act, declared CAL to be the collecting society for the purposes of Part VB of the Act for all owners of copyright in works other than works included in a sound recording or cinematograph film. Accordingly, and importantly, CAL is the collecting society for all the owners of copyright in literary, dramatic, musical and artistic works, and of such works over the full range of their potential merit, form and length.

  17. It is appropriate now to give an outline of Part VB, although, as will be noted in the course of the following account, it was in fact amended by the Copyright Amendment Act (No 1) 1998 (Cth) (No 104, 1998).

  18. Section 135ZB, the first section in Part VB as introduced, was a definition section.  An “administering body” was defined to mean a body administering an “institution”.  For present purposes, an “institution” was defined to mean “an educational institution”.  The expression “collecting society” was defined to mean a body that, for the time being, was declared to be a collecting society by the Attorney-General under s 135ZZB.

  19. The expression “licensed copy” was defined to mean, relevantly:

    “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 section 135ZJ, 135ZK or 135ZL.”

    We will shortly refer further to those three sections below.

  20. A “remuneration notice” was defined to mean a notice referred to in subs 135ZU(1).  This is a notice given by an administering body to the relevant collecting society undertaking to pay equitable remuneration to that society for licensed copies made by the administering body or on its behalf, being copies made while the notice was in force.  Importantly, s 135ZU required that a remuneration notice specify whether the amount of equitable remuneration undertaken to be paid was to be assessed on the basis of a “records system” or a “sampling system”.  A “records notice” was defined in s 135ZB to mean a remuneration notice specifying that the amount of equitable remuneration was to be assessed on the basis of a “records system”, while a “sampling notice” was defined to mean a remuneration notice specifying that the amount was to be assessed on the basis of a “sampling system”.  It was an important change made by the 1989 amendments that administering bodies were given this choice between a records system and a sampling system.  Previously the legislation had provided for a records system alone, and sampling had represented an unauthorised departure from the legislative scheme that CAL and the Universities had adopted in the interests of administrative practicality and convenience.

  21. Division 2 (ss 135ZG-135ZM) of the new Part VB was headed “Copying of works by educational institutions”.  Section 135ZG excluded from the ambit of infringement of the copyright in a literary or dramatic work, copying of insubstantial (as defined) portions of the work in an edition of the work on the premises of an educational institution for the purposes of a course of education provided by it.  This “statutory” licence was free of charge to the institution.  So was that created by s 135ZH, which excluded from the ambit of infringement the copying by or on behalf of the body administering an educational institution of the whole or a part of a published edition of a work, being a work in which copyright did not subsist, for the educational purposes of that or another educational institution.

  1. Section 135ZJ is the first of the three sections providing for copying for which equitable remuneration was to be payable.  But before we note those sections individually, it is convenient to note that in all three (ss 135ZJ, 135ZK and 135ZL) it was a condition of the exclusion that:

    “(a)a remuneration notice, given by or on behalf of the body to the relevant collecting society, is in force;

    (b)the copy is made solely for the educational purposes of the institution or of another educational  institution; and

    (c)the body complies with subsection 135ZX(1) or (3), as the case requires, in relation to the copy.”

    (We note subsections 135ZX(1) and (3) below.) 

  2. Section 135ZJ addressed articles contained in periodical publications.  It provided that the copyright in an article (“article” was not defined) contained in a periodical publication (“periodical publication” was not defined but s 10(3)(k) provided that a reference to a periodical publication was to be read as a reference to an issue of a periodical publication) was 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.  (Subsection (2) of s 135ZJ provided that the section did not apply in circumstances not presently relevant.)

  3. Section 135ZK addressed the copying of works published in anthologies. It provided 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, was 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.

  4. Finally, s 135ZL addressed the copying of literary, dramatic, musical or artistic works (other than an article contained in a periodical publication) generally.  The section provided that the copyright in such a work was not infringed by the making of one or more copies of the whole or a part of the work by or on behalf of the body administering an educational institution.  (Subsection (2) of s 135ZL provided that the section did not apply in circumstances not presently relevant.)

  5. Section 135ZM now contains two subsections but subs (2) was added only by the Copyright Amendment Act (No 1) 1998 (Cth) (No 104, 1998) which commenced on 30 July 1998. For convenience, we will set out the whole of s 135ZM as it has been since that date, but it is important to remember that as enacted by Act No 32, 1989 it contained only what is now subs (1). Section 135ZM, which lies at the heart of the question which CAL requested the Tribunal to refer to the Court, is now as follows:

    “(1)Where an article or other literary, dramatic or musical work is accompanied by an artistic work or artistic works provided for the purpose of explaining or illustrating the article or other work, the preceding sections of this Division apply as if:

    (a)where any of those sections provides that the copyright in the article or other work is not infringed - the reference to that copyright included a reference to any copyright in that artistic work or those artistic works;

    (b)a reference to a copy of an article or other work included a reference to a copy of the article or other work together with a copy of that artistic work or those artistic works;

    (c)a reference to a copy of a part of an article or other work included a reference to a copy of that part of the article or other work together with a copy of the artistic work or artistic works provided for the purpose of explaining or illustrating that part;

    (d)a reference to a copy of a page of a literary or dramatic work in an edition of the work included a reference to a copy of a page in such an edition that contained that work and an artistic work or artistic works provided for the purpose of explaining or illustrating that part of that work; and

    (e)a reference to a copy of pages of a literary or dramatic work in an edition of the work included a reference to a copy of pages in such an edition that contained a part of that work and an artistic work or artistic works provided for the purpose of explaining or illustrating that part of that work.

    (2) If:

    (a)any remuneration is paid under this Part in respect of a page of a document that is:

    (i)a copy of the whole or a part of an article (other than a part that is an artistic work) contained in a periodical publication; or

    (ii)a copy of the whole or a part of a literary or dramatic work contained in a published anthology of works; or

    (iii)a copy of the whole or a part of a literary, dramatic or musical work other than an article contained in a periodical publication; and

    (b)the making of the page [sic – the making of the copy of the page] is not an infringement of the copyright in the article or work because of section 135ZJ, 135ZK or 135ZL; and

    (c)the page includes an artistic work or artistic works provided for the purpose of explaining or illustrating the article or work;

    the following paragraphs apply:

    (d)one-half of the remuneration paid in respect of the making of the page is to be paid to the owner, or divided equally among the owners, of the copyright in the literary, dramatic or musical work or works which, or a part of which, appear on the page; and

    (e)one-half of that remuneration is to be paid to the owner, or divided equally among the owners, of the copyright in the artistic work or artistic works which, or a part of which, appear on the page.”

  6. We will have occasion to refer in some detail below to the terms of s 135ZM set out above.

  7. Division 5 (ss 135ZU-135ZZA), headed “Equitable remuneration”, also formed part of Part VB inserted in the Act by Act No 32, 1989. It will be recalled that s 135ZU provided that an administering body might, by a notice in writing given to the relevant collecting society, undertake to pay equitable remuneration to the society for licensed copies made by the administering body or on its behalf and that a remuneration notice must specify whether the amount of equitable remuneration was to be assessed on the basis of a records system or a sampling system.

  8. Section 135ZV dealt with records notices and s 135ZW dealt with sampling notices. Subsections 135ZV (1) and (2) were, and are, as follows:

    “(1)Where a records 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 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 that collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.

    ……………………………………………………………………………………

    (2)For the purposes of subsection (1), different amounts may be determined (whether by agreement or by the Copyright Tribunal) in relation to different institutions administered by the administering body and different classes of students of an institution administered by it.”

    The Universities submit that in relation to the question of the Tribunal’s power to determine different amounts for different classes of works, the alternative sampling system the subject of s 135ZW (set out below) was not intended to differ from the records system the subject of s 135ZV and that s 135ZV does not allow that kind of differentiation.

  9. (It may be noted that subs (1A) was inserted in s 135ZV by the Copyright Amendment Act (No 1) 1998 (Cth) (No 104, 1998) s 3 Schedule 6 Item 11, but is not presently relevant.)

  10. In the present case the Universities gave sampling notices rather than records notices.  Section 135ZW deals with sampling notices as follows:

    “(1)Where a sampling 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 made by it, or on its behalf, while the notice is in force is such annual amount as is determined by agreement between the administering body and that collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them.

    (1A)If a determination has been made by the Tribunal under subsection (1), either the administering body or the collecting society may, at any time after 12 months from the day on which the determination was made, apply to the Tribunal under that subsection for a new determination of the amount of equitable remuneration payable to the collecting society by the administering body for licensed copies made by or on behalf of that body.

    (2)The annual amount referred to in subsection (1) shall be determined (whether by agreement or by the Copyright 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.

    (3)The number of copies referred to in subsection (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 Copyright Tribunal on application made by either of them.

    (4)For the purposes of subsection (1), different annual amounts may be determined (whether by agreement or by the Copyright Tribunal) in relation to different institutions administered by the administering body.

    (5)      Where:

    (a)a sampling notice is given by, or on behalf of, an administering body to a collecting society; and

    (b)during any period, the administering body does not comply with one or more of the requirements of the sampling system determined under this section in relation to that notice;

    sections 135ZJ, 135ZK, 135ZL, 135ZP and 135ZS do not apply to any copy of a work or other subject-matter by, or on behalf of, the administering body during that period.”

  11. Section 135ZW as set out above incorporates amendments which were made by the Copyright Amendment Act (No 1) 1998 (Cth) (No 104, 1998) s 3, Schedule 6, items 12, 13 and 14. Prior to those amendments, in subsection (1) the words “per student of the institution concerned” immediately followed the words “such annual amount”, that is, the subsection referred to an “annual amount per student of the institution concerned” as was determined by agreement or by the Tribunal, but since the amendment it is only “such annual amount” as is so agreed or determined. Accordingly, for part of the period covered by the proceeding before the Tribunal, namely, the period down to 30 July 1998, the “per student” wording applies.

  12. Again, subsection (1A), in the same terms as subs (1A) that was inserted in s 135ZV, was inserted in s 135ZW. Finally, prior to the amending Act of 1998, the additional words “and different classes of students of an institution administered by it” appeared at the end of subs (4), and consistently with the amendment made to subs (1) noted above, these words were omitted by the amending Act.

  13. The Universities again seek to contrast subs 135ZW(4) with subs 135H(2) as they sought to contrast subs 135ZV(2) with that subsection.

  14. Section 135ZX imposes on an administering body which has given a records notice or a sampling notice certain “marking and record keeping requirements”, and s 135ZY entitles a collecting society to which a remuneration notice has been given to inspect relevant records of that body. Section 135ZZA entitles a collecting society to recover as a debt from an administering body an amount of equitable remuneration agreed or determined under s 135ZV or 135ZW.

  15. Division 6 (ss 135ZZB-135ZZE) is headed “Collecting societies”.  Subsection 135ZZB(1), referred to earlier, empowers the Attorney-General by notice in the Gazette to declare the body named in the notice to be the collecting society for all relevant copyright owners or for such classes of them as are specified in the notice.  Under subs (3), however, the Attorney-General is not to declare a body to be a collecting society unless the conditions set out in that subsection are satisfied.  For example, all persons who are included in a class of relevant copyright owners specified in the declaration or their agents must be entitled to become members of the collecting society.  Of relevance to the present case is the condition that the collecting society’s rules must contain such other provisions as are prescribed, including provisions about:

    “(i)the collection of amounts of equitable remuneration payable by administering bodies under section 135ZV or 135ZW;

    (ii)the payment of the administrative costs of the collecting society out of amounts collected by it;

    (iii)the distribution of amounts collected by the collecting society;

    (iv)the holding on trust by the collecting society of amounts for relevant copyright owners who are not its members; and

    (v)access to records of the collecting society by its members.”

  16. Division 7 (ss 135ZZF-135ZZH) of Part VB contains miscellaneous provisions.  Subsection 135ZZF(1) provides that nothing in Part VB affects the right of the owner of the copyright in a work to authorise the body administering an educational institution to make, or to cause to be made, copies of the whole or a part of the work without infringement of that copyright.

  17. It remains to note only s 153C which is in Part VI of the Act. That Part deals with the Tribunal. Section 153C deals specifically with applications to the Tribunal under s 135ZV and subs 135ZW(1). It provides as follows:

    “(1)The parties to an application to the Tribunal under section 135ZV or subsection 135ZW(1) for the determination of the amount of equitable remuneration payable to a collecting society by an administering body for the making, by or on behalf of that body, of licensed copies are the society and the body.

    (2)Where an application is made to the Tribunal under section 135ZV or subsection 135ZW(1), the Tribunal shall consider the application and, after giving the parties to the application the opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration for the making of a licensed copy. [As introduced by Act No 32, 1989 and prior to amending Act No 104, 1998, the words ‘per licensed copy, or per student of the relevant institution, as the case may be,’ appeared immediately following the word ‘amount’, so that subs (2) read ‘ … determining the amount per licensed copy, or per student of the relevant institution, as the case may be, that it considers to be equitable remuneration for the making of a licensed copy.’]

    (3)In making an order, the Tribunal may have regard to such matters (if any) as are prescribed.

    (4)An order may be expressed to have effect in relation to licensed copies made before the day on which the order is made.

    (5)In this section, administering body, collecting society, institution and licensed copy have the same meanings as in Part VB [as enacted by Act No 32, 1989 and prior to amending Act No 104, 1998, subs (5) also included a reference to ‘student’.]”

  18. Regulation 25B of the Copyright Tribunal (Procedure) Regulations, which the Universities did not submit is invalid, is as follows:

    “(1)For the purposes of subsection 153C(3) of the Act the following matters are prescribed:

    (a)the nature of the works … copied;

    (b)the institutions for which the copies are made;

    (c)any matters that have been assessed by use of a sampling system determined under subsection 135ZW(3) of the Act;

    (d)the need to ensure adequate incentive for the production of educational works … in Australia;

    (e)the purpose and character of the copying;

    (f)the effect of the copying on the market for or value of, the material copied;

    (g)the special circumstances of external students including any difficulties faced by those students in meeting the requirements of sections 41, 49 or 135ZG of the Act;

    (h)any unremunerated contribution by institutions to the creation of the material copied.

    (2)      In subregulation (1), ‘external student’, in relation to an institution, means a person undertaking a correspondence course or external study course provided by the institution.” (emphasis supplied)

    Case N 985 of 1999 stated pursuant to the Universities’ request - section 135ZW

  19. On any reckoning the sampling system is a rough approximation.  Its adoption was dictated by considerations of administrative convenience.  Thus, the proposed rates arrived at by the Tribunal in the present case, while recognising various classes of copiable material, do not address differences within those classes: for example, 4 cents per page would be payable whether the page contained only a line or two, or was full of text.  Again, there is no attempt to differentiate according to the “value” of the material copied.  Finally, the remuneration of copyright owners depends on chance: the chance that there will be greater or lesser copying of their works during the sampling period.

  20. Against this background, senior counsel for the Universities submits as follows:

    “ … it is just because there is such a variety of material to be copied of such differing potential values that we say that Parliament has already made its decision about where it is that the line is to be drawn and that is that there is to be a common rate for all classes of material that are within the ambit of the collecting society and if the collecting societies find they do not like that they can reformulate themselves and they have the solution in their own hands.”

  21. No doubt senior counsel’s reference to a reformulation is a reference to the possibility that, for example, CAL might cease representing the owners of copyright in artistic works and that they might be represented by a newly formed collecting society. 

  22. The question before us is one of the boundaries of the power given by the legislation to the Tribunal.  This must be distinguished from the question whether, in the exercise of its discretion, the Tribunal might not distinguish between different classes of works because the resulting administrative inconvenience and cost might be of such a magnitude as to affect substantially the determination of the amount of remuneration that is “equitable”.

  23. At the forefront of his submissions, senior counsel for the Universities contends that “sampling follows record keeping”, that is, that the sampling system is not intended to be qualitatively different from the record keeping system and is intended to give results which approximate those that record keeping would give. He submits that s 135ZV, which deals with the effect of the giving of a records notice, contemplates only the one rate for all classes of work, and, therefore, that s 135ZW which states the consequences of the giving of a sampling notice must do the same.

  24. Subsection 135ZV(1) provides that “the amount of equitable remuneration payable … for each licensed copy … is such amount as is determined … ” (emphasis supplied). The Universities submit that the natural and ordinary meaning of the provision, particularly by reference to the use of the singular form, is that there is to be one amount, such as 2 cents per page. We think, however, that this reads too much into the subsection. The expression “licensed copy” is defined in s 135ZB to mean, relevantly, “a copy of the whole or a part of a work”. According to its actual and ordinary meaning, s 135ZV(1) is addressing the amount of equitable remuneration payable for each copy of the whole of a work or a part of a work, irrespective of the number of pages involved. We do not find in the legislation an intention that the only “part” of a work to be considered is a page and that s 135ZV provides only for equitable remuneration in respect of a “part” so understood. Nor do we think that Sheppard J in Copyright Agency Ltd v Department of Education of New South Wales (1985) 4 IPR 5 proceeded on the basis that he was determining equitable remuneration in respect of each page regarded as a “part of a work”. Rather, we think that his Honour was determining under the then s 53B the amount of equitable remuneration to be paid for the making of copies of any work or part of a work and that he used the “per page” rate as the means by which that amount was to be arrived at.

  1. Nor do we think that s 135ZV is to be construed differently from the former s 53B because s 135ZV was enacted after, and against the background of the fact that, Sheppard J had used a “per page” basis in the case mentioned. We do not think, for example, that somehow s 135ZV is to be construed in the light of his Honour’s decision as permitting only determination of one amount per page for all pages copied (his Honour’s determination had in fact been of that kind).

  2. The Universities next refer to subs (2) of s 135ZV. It may be recalled that that subsection provides that for the purposes of subs (1), “different amounts may be determined … in relation to different institutions administered by the administering body and different classes of students of an institution administered by it”. There is no reference to “different classes of works”. The submission is expressio unius est exclusio alterius. With this submission may be considered another made in relation to s 135H(2). That provision is one of a series of sections which also exclude from the ambit of infringement of copyright, certain copying by educational institutions, and is in substance in identical terms to s 135ZV, except that it refers to “different classes of works, sound recordings or cinematograph films included in transmissions” as well as to “different institutions” and “different classes of students”. Section 135H appears in Part VA of the Act which deals with the copying of transmissions by educational and other institutions. Part VA was introduced into the Act at the same time as Part VB, that is, by Act No 32, 1989. Again, the Universities’ submission is expressio unius est exclusio alterius.

  3. The reference to “different classes of works, sound recordings or cinematograph films” in s 135H(2)(a) seems to be explained by the very wide range of material likely to be taped off-air.  In University of Newcastle v Audio-Visual Copyright Society Ltd (1999) 43 IPR 505, the Tribunal referred to evidence of an arrangement between the respondent, which had been declared by the Attorney General as a collecting society under s 135P and which was known as “Screenrights”, and over thirty Australian Universities. The evidence showed that programmes were classified by Screenrights as follows:

    ·           news

    ·           current affairs (magazine)

    ·           series

    ·           serials

    ·           light entertainment

    ·           sports programmes

    ·           advertisements

    This may explain why “different classes of works” were referred to expressly in s 135H(2), but does not address the Universities’ expressio unius submission based on the express mention of “different institutions” and “different classes of students” in s 135ZV itself.

  4. Nonetheless, we are not persuaded by the “approach” to statutory interpretation indicated by the expressio unius maxim to adopt the view that s 135ZV does not empower the Tribunal to determine the amount of equitable remuneration payable to the relevant collecting society by reference to different rates according to the classes of works concerned. “[T]he expressio unius est exclusio alterius rule is applied by the courts with extreme caution”: see Pearce and Geddes, Statutory Interpretation in Australia (4th ed, 1996) at [4.22] p 106 and the cases referred to in that paragraph.

  5. The Act requires the Tribunal to arrive at an amount of “equitable remuneration”. In the case of the sampling scheme, s 135ZW(2) provides that the annual amount of equitable remuneration payable to the relevant collecting society by an administering body for licensed copies made by it or on its behalf is to be the annual amount determined 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.”

    As noted earlier, s 153C(3) provides that in making an order determining the amount that it considers to be equitable remuneration for the making of a licensed copy, the Tribunal may have regard to such matters as are prescribed. The very notion of “equitable” remuneration suggests that in the absence of statutory restraints, the Tribunal should be at liberty to take into account different classes of works unless the statute evinces a contrary intention. This approach is consistent with the express terms of s 135ZW(2). Although there is a discordance between the reference to “annual amount” in s 135ZW and the reference to “amount … for the making of a licensed copy” in s 153C(2), we think it plain that in the case of the sampling scheme as well as that of the records scheme, the Tribunal may have regard to different classes of works both because that matter is “relevant in the circumstances” to the determination for the purposes of s 135ZW(2) and by reason of the reference to “the nature of the works” in Copyright Tribunal (Procedure) Regulation 25B(1)(a).  We are not dissuaded from this view by the lack of symmetry between ss 135ZW and 153C to which we have referred.  The asymmetry is more textual rather than substantive: under s 135ZW, although an annual amount is to be determined, it is an annual amount of equitable remuneration payable for the making of licensed copies.

  6. We would also point out that the Tribunal’s arbitral function arises only when an administering body and a collecting society have been unable to reach agreement.  Parties in a commercial negotiating context are likely to have regard to a wide range of factors, some favouring one party and some the other.  Since copyright material used by educational institutions varies almost infinitely in respect of cost, value, rarity, and demand generated (to name but a few factors) it would be rational and understandable for parties in negotiation to consider differential rates for different categories of material.  We do not see why we should impute to Parliament an intention that in arbitrating an outcome the Tribunal should be shut out from taking such matters into account itself and producing an outcome of the kind which the parties might have reached by negotiation.

  7. In sum, we would answer the question posed by the reference to the Court pursuant to the Universities’ request, “Yes”.

    Case N 733 of 1999 stated pursuant to CAL’s request – section 135ZM

  8. Although the three questions of law referred to the Court by the Tribunal at the request of CAL 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 based on a special rate for an artistic work included in the page of a document in respect of which such remuneration is payable. Accordingly, the three questions are intended to raise the issue whether s 135ZM, on its true construction, limits the Tribunal’s powers under s 135ZW. The President of the Tribunal, Burchett J, thought that it did and he expressed his view in the following passage in Copyright Agency Ltd v University of Adelaide (1999) 42 IPR 529 at [38]:

    “By s 135ZM, provision is made for the case where a page copied under the statutory licence includes an artistic work or artistic works used for the purpose of explaining or illustrating a journal article or literary, dramatic or musical work from which the copy is taken.  In this case, s 135ZM(2)(d) and (e) provide for payment of one half of the remuneration in respect of the page to the owner or owners of the copyright in the literary, dramatic or musical work and one half to the owner or owners of the copyright in the artistic work.  The applicant contended that the presence of an artistic work on such a page should attract a special rate.  But it seems to me that s 135ZM(2) should be read in its context.  It was added, by s 3 and Schedule 6 of the Copyright Amendment Act (No. 1) 1998, to an existing regime governing the copying of literary, dramatic and musical works.  I think it assumed the equitable remuneration applicable to copying of this kind, and then provided that, for the particular page including an illustration, the remuneration should be divided in the way set out in the section.  This does not seem to me to contemplate that the remuneration for that page should be increased to provide for the artistic work.  If it were increased beyond an amount sufficient to provide equitable remuneration to the owner or owners of the literary, dramatic or musical work involved, then an inappropriate (because excessive) remuneration would be paid in respect of the copying of that literary, dramatic or musical work.  Reference was made to the Supplementary Explanatory Memorandum prepared at the time the Bill which became the amending Act was before Parliament; and to the second reading speech of the Minister responsible for the Bill in the Senate, Senator Alston:  Senate Hansard for 11 July 1998 p 5712.  These appear to confirm my view of the section.  Accordingly, I do not propose to fix any separate rate for illustrations falling within s 135ZM.”

  9. CAL submits that his Honour erred in thinking that s 135ZM prevented the fixing of a special rate in respect of an explanatory or illustrative artistic work included in a page in respect of the copying of which page equitable remuneration is otherwise payable under Part VB.

  10. We find it convenient to deal with the issues raised by addressing the historical background to s 135ZM, but first to state now our conclusion.  That conclusion is that s 135ZM reveals an intention that equitable remuneration is not to be separately payable in respect of an explanatory or illustrative artistic work that appears on the same page as the whole or part of an article or other work, in respect of the copying of which page equitable remuneration is payable under ss 135ZJ, 135ZK or 135ZL.

  11. Subsection 135ZM(1) was referred to in the debate before us as a “rewrite rule” for the preceding sections in Division 2 of Part VB, that is, ss 135ZG, 135ZH, 135ZJ, 135ZK and 135ZL. Such a rewrite section is found in s 53, which has been in the Act since its commencement on 1 May 1969. Section 53 provided (and provides) that

    “[w]here an article, thesis, or literary, dramatic or musical work [was or] is accompanied by artistic works provided for the purpose of explaining or illustrating the article, thesis or other work”,

    certain preceding sections (originally ss 49, 50 and 51, and since Act No 154, 1980, s 51A) applied (and apply) as if “rewritten” in certain respects.  We will refer to accompanying explanatory or illustrative artistic works simply as “illustrations”.  In general, the “rewriting” had (and has) the effect of giving provisions excluding certain situations from the scope of infringement of copyright, an extended operation so that they covered (and cover) the illustrations as well as the article, thesis or other work.  There was (and is) no provision for payment of remuneration to the copyright owner in respect of those statutory exclusions from the scope of infringement of copyright and consequently there was no provision for remuneration in respect of the illustrations caught by the extended scope of the exclusions.

  12. As noted earlier, Division 5A was inserted in Part III of the Act by Act No 154, 1980 with effect from 1 August 1981. It comprised ss 53A, 53B and 53C.

  13. Division 5A was headed “Copying of works in educational institutions”. Section 53A, the precursor of s 135ZG, provided that copyright in a literary or dramatic work was not infringed by the copying of insubstantial (as defined) portions of such works on the premises of an educational institution by any person for the purposes of a course of education provided by the institution. There was no charge for copying within s 53A.

  14. Section 53B comprised fourteen subsections and was the precursor of the present ss 135ZJ and 135ZL (“anthologies”, the subject of the present s 135ZK, were not addressed in Division 5A).  Section 53B(1) provided that copyright in an article contained in a periodical publication was not infringed by the making of copies for teaching purposes of the whole or a part of the article by or on behalf of the body administering an educational institution (cf the present s 135ZJ).  An article might be a literary, dramatic, musical or artistic work or a mixture of some or all of those classes of works.  Section 53B(2) provided identically but in respect of works other than articles the subject of subs (1) (apparently the field was divided into two subsections for reasons of drafting convenience which we will not stay to discuss).

  15. Subsection (4) imposed a “quantity control” on subs (1) copying, while subs (5) imposed a quantity control on subs (2) copying.  Subsections (6) and (7) qualified subss (1) and (2) respectively, by reference to record keeping requirements.  Subsections (9) and (10) dealt with “external and “correspondence” students and are not presently relevant.  Subsections (11), (12) and (13) provided, relevantly, as follows:

    “(11)Where copies of the whole or a part of a work, not being copies stated in the record to be copies to which sub-section (9) or (10) applies, are made by or on behalf of the body administering an educational institution and, by virtue of this section, the making of those copies does not infringe copyright in the work, that body shall, if the owner of the copyright in the work makes a request, in writing, at any time during the prescribed period after the making of the copies, for payment for the making of the copies, pay to the owner such as amount by way of equitable remuneration for the making of those copies as is agreed upon between the owner and the body or, in default of agreement, as is determined by the Copyright Tribunal on the application of either the owner of the body.

    (12)Where the Copyright Tribunal has determined the amount of equitable remuneration payable to the owner of copyright in a work by the body administering an educational institution in relation to copies of the whole or a part of that work that have been made by or on behalf of that body in reliance on this section, the owner may recover that amount from the body in a court of competent jurisdiction as a debt due to him.

    (13)Nothing in this section affects the right of the owner of copyright in a work to grant a licence authorizing the body administering an educational institution to make, or cause to be made, copies of the whole or a part of the work without infringement of that copyright.”

  16. Subsection (14) is not presently relevant.

  17. Without more, the owner of the copyright in a work, whether in the form of an article or not, and whether a literary, musical, dramatic or artistic work, was entitled under s 53B(11) to equitable remuneration in respect of copies made by or on behalf of the body administering an educational institution which were excluded from the scope of infringement of copyright by s 53B(1) or (2) as qualified by later subsections within s 53B.

  18. Section 53C provided in relation to ss 53A and 53B, as s 53 already did in relation to ss 49, 50 and 51 (and now did also in respect of s 51A which was inserted in the Act by Act No 154, 1980 with effect from 1 August 1981), for a “rewrite” of those sections in respect of illustrations. Section 53C commenced:

    “Where an article or other literary, dramatic or musical work is accompanied by an artistic work or artistic works provided for the purpose of explaining or illustrating the article or other work, the preceding sections of this Division apply as if - …”.

  19. In substance, s 53C extended the exclusions from the scope of infringement provided for by ss 53A and 53B to encompass illustrations.  In our opinion, the legislative intention was that illustrations were to be treated differently from other artistic works (“independent artistic works”).  Without s 53C, the owner of the copyright in an artistic work, whether an illustration or an independent artistic work, which formed part of an article within s 53B(1) or part of a work other than an article within s 53B(2), would have been entitled to equitable remuneration under s 53B(11).  But the intention appears to have been that illustrations now be dealt with specially by s 53C rather than by ss 53B(1) and (2), while independent artistic works remained dealt with by those two subsections.  That is, in contrast to independent artistic works, illustrations were not to attract the right to equitable remuneration provided for in s 53B(11).

  20. Act No 32, 1989 repealed Division 5A of Part III and replaced it with Part VB with effect from 1 July 1990. The “rewrite” provisions formally expressed in s 53C were replaced by s 135ZM. But Act No 104, 1998 added a new subsection (2) and renumbered the existing 135ZM as subsection (1) of that section with effect from 30 July 1998. We will first address s 135ZM in its original form, that is, when it consisted of the present subs (1) alone.

  21. Sections 135ZG, 135ZH, 135ZJ, 135ZK and 135ZL all provide for “non-infringement” situations, that is, for exclusions from the scope of infringement of copyright, and s 135ZM extended the scope of the exclusions to encompass illustrations.

  22. Section 135ZG replaced the former s 53A and provided for the free of charge copying of insubstantial (defined) portions of a page or pages of a literary or dramatic work in an edition of the work by a person on the premises of an educational institution for the purposes of a course of education provided by that institution.

  23. Section 135ZH was a new provision for free of charge copying of the whole or a part of a published edition of a work, “being a work in which copyright does not subsist”, by or on behalf of a body administering an educational institution for the educational purposes of that or another educational institution.

  24. Whereas ss 135ZG and 135ZH provide for free of charge copying, ss 135ZJ, 135ZK and 135ZL provide for copying for which equitable remuneration was to be payable.  Subject to the introduction of the three conditions set out earlier in these Reasons for Judgment (see [22]), ss 135ZJ and 135ZL reflected, respectively, the former ss 53B(1) and 53B(2), while s 135ZK was a new provision dealing specially with anthologies.  Section 135ZM reflected the former s 53C.

  25. In our opinion, subs (2) which was, as noted earlier, added to s 135ZM by Act No 104, 1998 with effect from 30 July 1998, can be explicated as follows:

    “(2)     If:

    (a)any remuneration is paid under this Part [by an administering body to a collection society] in respect of a page of a document that is:

    (i)a copy of the whole or a part of an article [a reference to copying of the kind referred to in s 135ZJ] (other than a part that is an artistic work) contained in a periodical publication; or

    (ii)a copy of the whole or a part of a literary or dramatic work contained in a published anthology of works [copying of the kind provided for in s 135ZK]; or

    (iii)a copy of the whole or a part of a literary, dramatic or musical work other than an article contained in a periodical publication [subject to the omission of a reference to an artistic work, copying of the kind referred to in s 135ZL]; and

    (b)the making of the page [sic – the making of the copy of the page] is not an infringement of the copyright in the article or work because of section 135ZJ, 135ZK or 135ZL; and

    (c)the page includes an artistic work or artistic works provided for the purpose of explaining or illustrating the article or work;

    the following paragraphs apply:

    (d)one-half of the remuneration paid [by the administering body to the collecting society] in respect of the making of the page [sic – the making of the copy of the page] is to be paid to the owner, or divided equally among the owners, of the copyright in the literary, dramatic or musical work or works which, or a part of which, appear on the page; and

    (e)one-half of that remuneration is to be paid to the owner, or divided equally among the owners, of the copyright in the artistic work or artistic works which, or a part of which, appear on the page.” 

  1. In our opinion the intention revealed by subs (2) is that the amount of the remuneration for the copying of a page of a document which includes an illustration is to be assessed as if it did not include the illustration, but the amount so assessed is to be paid in equal shares to the owner of the copyright in the illustration and the owner of the copyright in the other work or works on that page.  We think the legislative intention is that there not be an assessment which takes into account different amounts in respect of the illustration and the other work or works on the page, but that in the interests of administrative convenience the assessment ignore the presence of the illustration.  It is understandable that such a view might be taken: it is usually inconvenient to copy part of a page without copying the remainder, even if the remainder is not wanted.

  2. It is true that the owner of the copyright in the illustration may not be served well by the solution arrived at by the legislature.  Even if it be accepted that in the interests of practicality and expediency, there should be a fifty/fifty split of the remuneration payable in respect of the page, the owner of the copyright in the illustration would be better served if the determination of the total amount payable could take into account specially that the page include an artistic work.  On the other hand, such an approach would lead to the payment of something more than equitable remuneration to the owner of the copyright in the other work or works on the page.  Since there is no solution available which is both equitable as between the two classes of copyright owner and practicable, the legislature has seen fit to provide for assessment of the remuneration based on the “principal” work or works on the page.

  3. The view which we have expressed is strongly supported by both the Second Reading Speech of Senator Alston, the Minister for Communications, the Information Economy and the Arts, on the Copyright Amendment Bill 1997 and a Supplementary Explanatory Memorandum which accompanied the Copyright Amendment Bill 1997.  Senator Alston said (Parl Debs, Senate 11 July 1998, p 5712):

    “Another important matter relates to the copying of art work.  The Copyright Act permits educational institutions to copy an artistic work when this is incidental to the copying of text in a book.  The relevant section 135ZM is ambiguous as to whether the owner of copyright in the artistic work is to receive remuneration for the copying.  Both the majority and minority ALP and Democrat committee reports recommended repeal of the section apparently in the belief that this would ensure artists were paid if their work was copied.

    Under the Copyright Act as it currently stands, section 135ZM permits the incidental copying of copyright artistic works during the copying of texts by educational institutions. However, there has been some dispute about whether this means that the owners of copyright in these artistic works are to be paid for this copying, and the government understands to date that they have not received any remuneration for copying under this provision of the licence.

    The Legal and Constitutional Legislation Committee recommended that the section be repealed.  It is arguable that artists are already entitled, however, to payment under the section, but the current provision is unclear and needs to be made unambiguous.  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.  The proposed amendment has the support of VI$COPY [a society representing, for some purposes, the owners of copyright in artistic works].”

    The Supplementary Explanatory Memorandum contained the following:

    “In Schedule 7 of the Bill, in relation to copying of works by institutions, the Government amendment will:

    ·Amend s.135ZM of the Act, which is part of the statutory licence for educational institutions to make copies for educational purposes, to clarify that, where an artistic work is copied along with text that accompanies the artistic work, then the remuneration now payable to the author of the text will be shared with the visual artist.”

  4. Similarly, “Notes on the Amendments” contained in the Supplementary Explanatory Memorandum contained the following:

    “Proposed new item 9A inserts a new subsection (2) at the end of s.135ZM (Application of Division to certain illustrations). It makes provision for the allocation of remuneration paid under Part VB of the Act in respect of a page of a document that is: a copy of the whole or part of an article in a periodical publication; or a copy of the whole or part of a literary or dramatic work contained in a published anthology; or a copy of the whole or a part of a work other than an article contained in a periodical publication; and the page copied is not an infringement of copyright under ss.135ZJ, 135ZK or 135ZL, and it includes one or more artistic works which explain or illustrate the article or work. In such a case, one half of the remuneration payable in respect of the work or works copied on that page is to be paid to the owner or owners of copyright in the artistic work, or works as the case may be, on the page.”

  5. The Explanatory Memorandum and Supplementary Memorandum make it clear that the legislature proceeded on the bases that:

    ·     without the new subs (2), that is, on the basis of what is now s 135ZM(1) alone, where an illustration appeared on the same page as a non-artistic work or part of a non-artistic work, and equitable remuneration was payable under s 135ZJ, 135ZK or 135ZL in respect of that page, the owner of the copyright in the non-artistic work did, but the owner of the copyright in the illustration did not, have a right to equitable remuneration; and

    ·     the addition of subs (2) was to compel equal sharing between the two classes of copyright owner of the amount of equitable remuneration which would have otherwise been payable in respect of the page to the owner of the copyright in the non-artistic work or works on the page alone.

  6. In the result, it seems to us that the schema of the legislation as it has developed treats artistic works in three classes for the purposes of the equitable remuneration provisions of Part VB.  First, there is the independent artistic work, that is, an artistic work other than an illustration.  The independent artistic work may be the subject of s 135ZJ or s 135ZL and may therefore give rise to an entitlement to equitable remuneration in the usual way.

  7. Secondly, there is the illustration which is not included on the same page as a non-artistic work for which equitable remuneration is payable.  Subsection 135ZM(1) causes such a “non same page illustration” to lose its separate identity for the purpose of determination of the amount of equitable remuneration payable, that is, requires it to be ignored. 

  8. Thirdly, there is the illustration which is included on the same page as a non-artistic work or works in respect of which equitable remuneration is payable.  In this case of “same page illustration”, s 135ZM(2) requires that the amount of equitable remuneration that would be payable in respect of the copying of the page if it did not include the illustration, be shared equally between the owner of the copyright in the illustration and the owner or owners of the copyright in the non-artistic work or works included on the page.

  9. Although we are not required to decide the matter, we incline to the view that para (d) in subs 135ZM(2) is addressing the point of time after the remuneration referred to has been paid by the administering body to the collecting society and is therefore directed to a division to be made by the collecting society among the respective classes of copyright owners.

  10. For the above reasons, we would answer the three questions posed by this stated case as follows:

    “(a)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for artistic works to which section 135ZM of the Act applies;” No

    “(b)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for literary works that contain illustrations to which section 135ZM of the Act applies; and” No

    “(c)whether upon a true construction of section 135ZM of the Act, the Tribunal may fix a separate or special rate of equitable remuneration for a page referred to in subsection 135ZM(2).” No


    Conclusion

  11. The questions referred to the Court by the Tribunal will be answered in the ways indicated above.  As each party succeeded on one of the two stated cases, a fair result as to costs is that there be no order as to costs.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            22 December 1999

Counsel Copyright Agency Limited: Mr D K Catterns QC and Ms S J Goddard
Solicitors for the Copyright Agency Limited: Banki Haddock Fiora
Counsel for the Universities: Mr J C Campbell QC and Mr R Cobden
Solicitors for the Universities: Baker & McKenzie
Date of Hearing: 10, 11 November 1999
Date of Judgment: 22 December 1999
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