The applicants are purchasers of units in a new townhouse development in the respondent Council's local government area. They allege that the townhouses suffer from a range of building defects. As part of their quest to obtain relevant documentation concerning the development they applied to Council pursuant to the Government Information (Public Access) Act 2009 (GIPA Act) for access to documents held by Council which relate to the development.
They are contemplating proceedings but have not commenced them yet.
Council has provided copies of a range of documents, but has not provided copies of the contentious documents in this matter. What it has provided is access to the contentious documents in "view only" mode using Council's facilities.
Council has refused to provide copies of the contentious documents on the basis that to do so would involve an infringement of copyright (S 72(2)(c) GIPA Act. S 72 allows alternative forms of access if there would be an infringement of copyright.
The Tribunal has jurisdiction pursuant to s 100 GIPA Act and s 9 Administrative Decisions Review Act 1997. Council has the burden of justifying its decision (s 105 GIPA Act).
Section 72 GIPA Act provides as follows:
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),
(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
(2) The agency must provide access in the way requested by the applicant unless:
(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or
(b) to do so would be detrimental to the proper preservation of the record, or
(c) to do so would involve an infringement of copyright, or
(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
I was informed by Council's representative that it had on 2 occasions sought permission of the copyright holders to provide copies of the contentious documents to the applicants, but they had refused. This goes above and beyond what Council is required to do, but is probably good practice.
The documents in contention all show a company name on them.
Document 2 is a drawing of a proposed laneway plan prepared by J Wyndham Prince Pty Ltd.
Document 7 is a set of subdivision plans prepared by Vince Morgan Pty Ltd, surveyors and stamped by the Council
Document 9 is a set of engineering plans for prepared by Palitha S. Wijesena & Associates Pty Ltd. The plans are stamped by Council to say that they form part of Construction Certificate number 3179/2015/CC 1 - 10.
Document 10 is a set of subdivision engineering plans prepared by Engineering Studios Civil and Structural Pty Ltd. The plan forms part of the construction certificate mentioned above.
Document 14 refers to utility provider plans revision E dated 21 March 2014 prepared by NBN Co Ltd and Design IT Telco Pty Ltd. The plan is marked "for construction".
Document 16 refers to 2 plans prepared by Jemena Gas Ltd or a subsidiary. One plan shows the proposed route of a gas main dated 11 November 2013 and the other is a mains minute sketch dated 13 October 2014.
Document 17 is a typical fence plan dated 22 December 2015 by Palitha S. Wijesena & Associates Pty Ltd. To form part of the construction certificate mentioned earlier.
Document 21 is a set of driveway profiles and long section plans prepared by Hemanote Consultants Pty Ltd.
I was advised by Council's representative that each of the companies is incorporated in Australia has its principal place of business in Australia. It seems reasonable to conclude that each company is an Australian resident.
S 31(1) of the Copyright Act 1968 (C'th) (Copyright Act) relevantly provides:
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;
(ii) to publish the work;
(iii) to perform the work in public;
(iv) to communicate the work to the public;
(vi) to make an adaptation of the work;
(vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive; and
(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;
(ii) to publish the work;
(iii) to communicate the work to the public; and
Section 10 of the Copyright Act provides 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 .
"literary work" includes:
(a) a table, or compilation, expressed in words, figures or symbols; and
(b) a computer program or compilation of computer programs.
Section 32 of the Copyright Act provides as follows:
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.
(2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:
(a) copyright subsists in the work; or
(b) if copyright in the work subsisted immediately before its first publication--copyright continues to subsist in the work;
if, but only if:
(c) the first publication of the work took place in Australia;
(d) the author of the work was a qualified person at the time when the work was first published; or
(e) the author died before that time but was a qualified person immediately before his or her death.
(3) Notwithstanding the last preceding subsection but subject to the remaining provisions of this Act, copyright subsists in:
(a) an original artistic work that is a building situated in Australia; or
(b) an original artistic work that is attached to, or forms part of, such a building.
(4) In this section, qualified person means an Australian citizen or a person resident in Australia.
A similar issue arose in the recent NCAT decision in Sandy v Kiama Municipal Council [2019] NSWCATAD 49.
A resident sought access to plans concerning a development adjacent to his property. The respondent refused to provide a copy of the plans for fear of infringing copyright but did offer view only access to the applicant. The Tribunal gave detailed consideration to the submissions of the applicant relating to copyright and to the potential exceptions which might be available. The Tribunal affirmed the Council's decision.
This matter appears very similar to the Sandy case. Plans and drawings were held to be original artistic works. It was also found that there was original literary work involved. The works appeared to have been created in Australia by Australian residents, and were thus subject to copyright (see paras 23 -28 of Sandy.)
I have seen the contentious documents and they each appear to be original artistic works and potentially contain original literary works defined by the Copyright Act and subject to copyright protection.
Accordingly Council cannot simply copy or permit the copying of the contentious documents (s 36 Copyright Act).
The Tribunal in Sandy examined possible exceptions and found that the fair dealing exception in section 41 Copyright Act does not seem to be applicable. The applicants do not want the documents for the purpose of criticism or review, but to obtain legal advice. The Council's purpose would be to meet a request for access (Sandy at pars 39 & 40).
The judicial proceedings exception in S 43 (1) likewise not be available, probably until proceedings are commenced (Sandy at par 44).
The legal advice exception in S 43 (2) will be not be available as it applies for the purposes of giving legal advice, not for seeking it (Volunteer Eco Students Abroad Pty Limited v Reach Out Volunteers Pty Limited [2013] FCA 731)
[2]
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: 11 December 2019