Brown v Wingecarribee Shire Council

NCAT Administrative and Equal Opportunity|2020-04-09

Introduction

The applicant and his wife purchased a unit in Bowral, which they claim has defects.
On 9 September 2019, the applicant made an access application to the respondent Council, pursuant to the Government Information (Public Access) Act 2009 (GIPA Act) for access, by way of physical and electronic copies, to particular government information relating to the property on which the unit owned by the applicant and his wife is situated, namely: 1. "Vesna Giles Access Report"; and 2. "CDS 1314CC01 relating to Stage 3 as executed by Richard Anderson".
I will refer to these reports as the Giles Report and the Anderson Report.
On 27 September 2019, the Council decided to provide the applicant with partial access to the Giles Report and the Anderson Report. Some information was withheld on the basis that it was personal information and there was an overriding public interest consideration against providing access to it.
The Council also decided that the form of access should be by way of inspection only and not involve the provision of physical or electronic copies. The Council did so because it considered that the provision of such copies would involve an infringement of copyright. Prior to reaching its decision, the Council asked Ms Giles and Mr Anderson whether they would consent to the release of their reports by way of physical or electronic copies. Both declined.
On 3 October 2019, the applicant applied to the Council for internal review of Council's decision.
On 25 October 2019, the Council made its internal review decision. That decision upheld Council's decision.
On 13 November 2019, the applicant filed with the Tribunal an application for administrative review of the Council's decision.
It is common ground that the only part of the Council's decision which is challenged is the decision as to the form of access.

Jurisdiction and relevant legal principles

The Council's decision is a "reviewable decision": s 80(i) GIPA Act.
As the applicant is a person aggrieved by that reviewable decision, he has standing to apply for administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and the Tribunal has jurisdiction to conduct an administrative review of the decision: s 100 GIPA Act, s 9 ADR Act.
The Tribunal's task on an application for administrative review under the ADR Act is set out in s 63 of that Act in the following terms: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Section 63 provides that the Tribunal may exercise all of the functions conferred or imposed upon the Council by the GIPA Act and is required to decide what the correct and preferable decision is having regard to the material before it, including relevant factual material and applicable law.
The material before the Tribunal is: 1. the Giles Report and the Anderson Report; 2. the application to the Tribunal and accompanying documents; 3. submissions and reply submissions from the Council; and 4. submissions from the applicant, attaching 89 pages of correspondence and other reports.
The applicable law is contained in the GIPA Act (s 72) and the Copyright Act 1968 (Cth) (Copyright Act) (ss 10, 13, 29, 31, 32, 36 and 40-43 in particular) and in case law relevant to those sections. The applicable sections are considered in detail below. In considering the application of those sections I have taken into account that the Council bears the onus of establishing that its decision was justified: s 105 GIPA Act.

Issues requiring resolution

The starting point is s 72 of the GIPA Act, which deals with the different ways in which access to government information may be provided. In so far as is presently relevant, it provides: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), … (2) The agency must provide access in the way requested by the applicant unless: … (c) to do so would involve an infringement of copyright, …
Section 72(2) requires that access be provided in the way requested by the applicant (i.e. physical and electronic copies of the reports) unless one of s 72(a) - (d) applies.
The Council relies upon s 72(c). The effect of s 72(c) is that the Council would be justified in not providing copies of the Giles Report and the Anderson Report to the applicant if to do so would involve an infringement of copyright.
Thus the issues for resolution are: 1. whether there is copyright in those reports; and 2. whether the provision of copies of those reports to the applicant would involve an infringement of that copyright.

Council's submissions

The Council's submissions, shortly stated are: 1. the reports are protected by copyright; 2. despite being under no obligation to do so, the Council contacted the authors of the reports and asked whether they would consent to the Council providing copies. Both authors refused; 3. the provision of access by physical or electronic copies would involve an infringement of copyright.

Applicant's submissions

The applicant's submissions contain a contention that they should be allowed a copy of the reports under the "fair dealing" provisions, but without explaining why those provisions apply. Otherwise, the applicant's submissions do not address the issues identified above. Rather, they focus upon considerations irrelevant to those issues, such as: 1. circumstances relating to why the applicant wishes to have had copies of the reports, namely, to use them in legal proceedings against the Council; 2. unsupported contentions that other Councils release such reports; and 3. a suggestion that the Council has sought to hinder his access to the reports.

Council's submissions in reply

In reply, the Council submitted that: 1. the applicant has not addressed the question of whether the provision of access by way of physical or electronic copies would involve an infringement of copyright; 2. the applicant has not explained how the "fair dealing" provisions apply to the present circumstances; 3. most of the applicant's submissions are irrelevant to the issue to be determined; 4. the suggestion that the Council has acted improperly is unfounded; and 5. the applicant has pursued this application despite legal advice he had received to the effect that it would likely fail. I note that this submission is not relevant to the issues which I must decide, although it might become relevant were an application for costs to be made.

Is there copyright in the reports?

Section 32(1) of the Copyright Act provides: 32 Original works in which copyright subsists (1) Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author: (a) was a qualified person at the time when the work was made; or (b) if the making of the work extended over a period - was a qualified person for a substantial part of that period.
The first requirement of s 32(1) is that each of the reports is an original literary, dramatic, musical or artistic work.
"Literary work" is defined non-exhaustively in s 10 of the Copyright Act as follows: literary work includes: (a) a table, or compilation, expressed in words, figures or symbols; and (b) a computer program or compilation of computer programs.
The concept of a literary work is considerably wider than this definition. It is sufficient for a work to be a literary work that it is intended to provide information, instruction or literary enjoyment. In Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 85 FCR 436; [1999] FCA 63 the Full Court of the Federal Court of Australia said at [17]: In Hollinrake v Truswell at 428 Davey LJ said that a literary work is a work "intended to afford either information and instruction, or pleasure, in the form of literary enjoyment". That observation was adopted by the Court of Appeal in Exxon Corporation v Exxon Insurance Consultants International Ltd at 143-144 and applied by the High Court in Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 at 182, 192-193, 201.
"Artistic work" is defined in s 10 of the Copyright Act as follows: artistic work means: (a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; (b) a building or a model of a building, whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b); but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989.
"Drawing" is defined non-exhaustively in s 10 of the Copyright Act as follows: drawing includes a diagram, map, chart or plan.
The Giles Report is a report which is intended to provide information and instruction. As such it is a literary work.
The Anderson Report contains a series of drawings, notes and plans, and as such is an artistic work. It is also a report which is intended to provide information, and as such is also a literary work.
The second requirement of s 32(1) is that the work is an original work. In this regard I adopt the following analysis of Senior Member Ludlow in Sandy v Kiama Municipal Council [2019] NSWCATAD 49 at [24]: [24] For copyright to subsist in a literary or artistic work, it must be original (Copyright Act s 32(1) and (2)). The concept of "originality" is not defined in the Act. The law on this topic indicates that "originality" means that the creation or production of the work required some independent intellectual effort, but novelty or inventiveness is not required. The work must have originated "with an author or joint authors from some independent intellectual effort" (IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) AIPC 92-335 per French CJ, Crennan and Kiefel JJ). The work must originate with the author and be more than a copy of other material, as stated by Dixon CJ in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 511. However an artistic work based on another work can attract its own distinct copyright if a sufficient degree of labour and skill has been expended by the author to give the work "some quality or character which the same material did not possess, differentiating the product from the raw material" (Macmillan & Co Ltd v K & J Cooper (1923) 93 LJPC 113 at 118 per Lord Atkinson).
Each of the reports is a bespoke report concerning the property on which the unit owned by the applicant and his wife stands. Each appears to be the product of an independent intellectual effort by its author. I find that each of the reports is an original work.
The third requirement of s 32(1) is that the work is unpublished.
Section 29 (1) of the Copyright Act provides, in so far as is presently relevant: 29 Publication (1) Subject to this section, for the purposes of this Act: (a) a literary, dramatic, musical or artistic work, or an edition of such a work, shall be deemed to have been published if, but only if, reproductions of the work or edition have been supplied (whether by sale or otherwise) to the public;
There is no suggestion that the reports have been supplied to the public. The refusal of Ms Giles and Mr Anderson to consent to the release of their reports is consistent with there having been no prior supply to the public. I find that the third requirement of s 32(1) is satisfied.
The fourth requirement of s 32(1) is that the author of the work was a "qualified person" when the work was made or for a substantial part of the period over which the work was made. A "qualified person" is defined in s 32(4) of the Copyright Act as meaning "an Australian citizen or a person resident in Australia".
It is clear from the Giles Report that Ms Giles operates from Moss Vale, that she has "over 20 years of Local Government Building Experience", is a TAFE NSW Building Surveying Teacher and a member of the Association of Consultants in Access Australia. I infer that Ms Giles is an Australian citizen or a person resident in Australia.
The Anderson Report has been prepared by Richard Anderson, director of Civil Development Solutions Pty Ltd, a company based in Bowral. I infer that Mr Anderson is an Australian citizen or a person resident in Australia.
Finally, I note that s 32(1) operates subject to the remainder of the Copyright Act. In the present case, there appears to be nothing in the remainder of the Act which would contradict the conclusions reached above.
I am satisfied that all of the requirements of s 32 of the Copyright Act have been satisfied and that copyright exists in the reports.

Would provision of copies of the reports to the applicant involve an infringement of copyright?

Section 36(1) of the Copyright Act deals with infringement of copyright. it provides, in so far as is presently relevant: 36 Infringement by doing acts comprised in the copyright (1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.
The first requirement of s 36(1) is that there is "copyright in a literary…or artistic work". For the reasons set out above, I have concluded that there is copyright in each of the reports.
The second requirement of s 36 is that a person (here, the Council) does "any act comprised in the copyright". The content of this expression is informed by s 13(1) of the Copyright Act, which provides: 13 Acts comprised in copyright (1) A reference in this Act to an act comprised in the copyright in a work or other subject‑matter shall be read as a reference to any act that, under this Act, the owner of the copyright has the exclusive right to do.
Thus it is necessary to identify the acts to which the copyright owners have the exclusive right. Section 31 of the Copyright Act provides, in so far as is presently relevant: 31 Nature of copyright in original works (1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right: (a) in the case of a literary, dramatic or musical work, to do all or any of the following acts: (i) to reproduce the work in a material form; … (b) in the case of an artistic work, to do all or any of the following acts: (i) to reproduce the work in a material form; …
The effect of s 31 (1) (a) (i) and (b) (i) is that the copyright owners have the exclusive right to reproduce the reports in a material form. The concept of "material form" is broad enough to include the reproduction of the reports as physical or electronic copies.
"Material form" is defined non-exhaustively and widely in s 10 of the Copyright Act as follows: material form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).
Thus the copyright includes the exclusive right to reproduce the reports in a physical or electronic form (ss 10, 31) and such a reproduction by the Council would be an act comprised in the copyright (s 13). It follows that the second requirement of s 36 is satisfied.
The third requirement of s 36 is that the person (here, the Council) "does in Australia, or authorises the doing in Australia of" the act comprised in the copyright (here, the provision of physical and electronic copies of the reports). This requirement is satisfied as any the provision of physical and electronic copies of the reports to the applicant would occur in Australia.
The fourth requirement of s 36 is that the person who performs the act comprised in the copyright is not the owner of the copyright or a person who has the licence of the owner of the copyright. The Council is not the owner of the copyright in either report. It also does not have the licence of either owner. It follows that this requirement is also satisfied.
The fifth requirement of s 36 is that there is nothing else in the Copyright Act which overrides s 36. This comes from the opening phrase of s 36 "Subject to this Act…".
Within Part III of the Copyright Act are various provisions which provide that certain acts are to be treated as not constituting an infringement of copyright. Some of these (ss 40-43) might be described as "fair dealing provisions". As noted above, the applicant in his submissions placed reliance upon the "fair dealing provisions".
Broadly speaking, ss 40-43 provide that a dealing with a work the subject of copyright will not constitute an infringement of copyright if the dealing is fair and it is for a particular purpose, such as research or study, criticism or review, parody or satire, reporting news, judicial proceedings or the giving of professional advice.
None of these purposes is established in the present case. The only purpose which emerges from the available evidence is a purpose of using the reports in legal proceedings to be brought against the Council.
In my view, the "fair dealing provisions" are not engaged by such a purpose. In particular: 1. s 43(1) is not engaged because there is no judicial proceeding as the applicant is yet to commence proceedings: see Sandy v Kiama Municipal Council at [44]; and 2. s 43(2) is not engaged as that section applies only to dealings done for the purpose of giving legal advice: see Volunteer Echo Students Abroad Pty Limited v Reach Out Volunteers Pty Limited [2013] FCA 731 at [315].
I have also considered the other provisions in Part III of the Copyright Act which provide that certain acts are to be treated as not constituting an infringement of copyright. None of those provisions appears to have any application.
Thus, the provision of physical or electronic copies of the reports by the Council to applicant would constitute an infringement of copyright pursuant to s 36 of the Copyright Act.

Conclusion

For the reasons set out above: 1. the reports are subject to copyright; 2. the provision of a physical or electronic copy of the reports would constitute an infringement of copyright; 3. the correct and preferable decision is that access to the reports be provided by way of inspection only; 4. the decision under review is affirmed.

Orders 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2020

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)

Cited By (1)