Sandy v Kiama Municipal Council [2019] NSWCATAD 49

Read the decision here:  Sandy v Kiama Municipal Council [2019] NSWCATAD 49

Summary

The Applicant applied for access to information (plans, drawings and reports) relating to a development application for an abattoir adjacent to his property under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The Tribunal affirmed the decision of the Respondent to provide access to information by way of inspection, on the basis that to provide a copy of the records containing the information, as sought by the Applicant, would infringe copyright under the Copyright Act 1968 (Cth) (Copyright Act). In making its decision, the Tribunal provided guidance about determining whether information associated with a development application will be subject to copyright and when copyright will be infringed by providing access under the GIPA Act.

What you need to know

Access to government information in response to an access application may be provided in several specified ways under the GIPA Act, including by allowing the applicant to inspect the record or by providing a copy of a record (section 72(1)). The general requirement that access be provided in the way requested by the applicant is subject to exceptions, including where to do so would involve an infringement of copyright (section 72(2)(c)).

A decision not to provide access in the way requested by the applicant is a reviewable decision under section 80(i) of the GIPA Act, which means it is capable of being internally reviewed, as well as externally reviewed by the Information Commissioner and the Tribunal.

The Copyright Act 1968 (Cth) gives copyright owners the exclusive right to do certain acts, including the right to reproduce work in a material form and the right to communicate the work to the public. With certain limited exceptions, copyright is infringed where someone other than the copyright owner does any act, or authorises any act to be done, that is the exclusive right of the copyright owner, without the copyright owner’s permission or ‘licence’ (see sections 13(1) and 36).

In this matter, the Applicant did not accept that the information he sought was subject to copyright and applied to the Tribunal for administrative review of the decision of the agency to provide access by inspection, rather than to provide him a copy.

The Tribunal found that the information to which ‘view only’ access had been provided comprised literary or artistic works protected by copyright. Because the Respondent had no express or implied licence to copy the information, the Tribunal agreed with the Respondent that to provide access in the way requested by the Applicant would involve an infringement of copyright. The Tribunal considered exceptions under the Copyright Act for fair dealing for the purpose of criticism or review and reproduction for the purpose of judicial proceedings or professional advice, and found that none applied in the circumstances.

On this basis, the Tribunal affirmed the decision of the Respondent.

Legislative background

GIPA Act

Section 72 Forms of access

Section 73 Access to be unconditional

Copyright Act

Section 10 Definition of ‘artistic work’ and ‘literary work’

Section 31 Nature of copyright in original works

Section 32 Original works in which copyright subsists

Section 36 Infringement by doing acts comprised in the copyright

Section 41 Fair dealing for purpose of criticism or review

Section 43 Reproduction for purpose of judicial proceedings or professional advice

Environmental Planning and Assessment Act 1979 (NSW)

Section 10.14 Copyright in documents used for purposes of this Act—indemnification

Local Government Act 1993 (NSW)

Section 83 Ownership and use of plans and specifications

Factual background

In relation to information it considered to be subject to copyright, the Respondent determined to provide access by providing the Applicant the opportunity to inspect the record containing the information under section 72(1)(a) of the GIPA Act. The information comprised reports prepared by consultants and plans associated with the development application. It included surveys, stormwater drainage plans, and building plans.

The Applicant sought copies, rather than access by inspection, in order to properly consider the detailed information and to obtain legal advice on whether or not to commence legal proceedings regarding the development.

The Applicant contended that in accordance with the onus under section 105 of the GIPA Act, the Respondent should establish:

• the information is protected by copyright, being original literary or artistic works created by qualified persons, within the meaning of the Copyright Act;
• that copying the documents or allowing them to be copied would be ‘reproduction’ or authorisation of reproduction under sections 21 and 36(1A) of the Copyright Act;
• that the owner of the copyright had not granted an express or implied licence to the Respondent allowing copying by the Applicant; and
• that copying the documents did not fall into any of the exceptions to infringement in part 3 Division 3 of the Copyright Act.

Tribunal findings

Whether the information is subject to copyright

The Tribunal found that the reports and plans sought by the Applicant were subject to copyright because they fell within the definition of ‘artistic work’ and ‘literary work’ under section 10(1) of the Copyright Act. Further, the works were original under section 32 of the Copyright Act because they were created by an author or authors, using independent intellectual effort, and the likelihood they were mere copies was remote.

For copyright to subsist in an original literary or artistic work, the author must be a ‘qualified person’, defined as an Australian citizen or a person resident in Australia (section 32(4) of the Copyright Act). The Tribunal considered the available evidence about the relevant businesses, companies and individuals to whom the information was attributed and found that, although there was no evidence of the citizenship or residency of the authors, it was more probable than not that they were resident in Australia.

Whether reproducing the information would infringe copyright

Having found that the information was subject to copyright, the Tribunal considered that reproducing in material form, or copying the work, or authorising such an act, will infringe the copyright unless it is done with the permission of the owner of the copyright, or an exception applies.

The Tribunal found that if the Respondent were to give express or implied permission to the Applicant to reproduce the information, including providing copying facilities, it would infringe copyright (citing University of NSW v Moorehouse (1974) 133 CLR 1).

Whether the owner of the copyright granted an express or implied licence to allow copying

On the question of whether there was an express or implied licence to allow copying by the Applicant, the Tribunal noted that the Applicant had sought permission to reproduce the information from the businesses but no permission was provided.

The Tribunal considered whether a license could be implied because in order for the development application to be processed, third parties would need to reproduce the information. The Tribunal considered section 10 of the Environmental Planning and Assessment Act 1979, which enables a licence to be given by the copyright owner for the purposes of that Act, but concluded that it does not enable a licence for the purposes of the GIPA Act.  

The Tribunal concluded that there was no evidence of express or implied licence to allow copying of the information.

Whether copying the documents falls into any of the exceptions to infringement in the Copyright Act

In determining whether giving access in the way requested by the Applicant would infringe copyright, the Tribunal considered three relevant exceptions under the Copyright Act, in section 41 (fair dealing for purpose of criticism or review) and section 43 (reproduction for purpose of judicial proceedings or professional advice). None of these exceptions were found to apply.

Section 41 provides that a fair dealing with a literary, dramatic, musical or artistic work does not constitute an infringement of the copyright if it is for the purpose of criticism or review and a sufficient acknowledgement of the work is made. The Tribunal determined the Respondent purpose for copying the information was not for criticism or review.

Section 43(1) of the Copyright Act provides that copyright is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding. This exception was found not to apply because there were no judicial proceedings in progress.

Section 43(2) of the Copyright Act provides fair dealing exception that will only apply to dealings done for the purpose of giving legal advice and not for the purpose of seeking legal advice.

Tribunal outcome

The Tribunal found that the Respondent would infringe copyright if it reproduced, or authorised the Applicant to reproduce, the information in question. On that basis, it affirmed the Respondent’s decision to provide access by providing a reasonable opportunity to inspect the records containing the information.