Last Thursday, 16 March, I heard an application made on behalf of John Fairfax Publications Pty Ltd, the publisher of the Australian Financial Review. The application was for access to the transcript of the trial presently being heard before me. It was submitted on behalf of the applicant that such access would enhance the likelihood of the trial being accurately reported by the Financial Review.
[2]
I accept that this so. Unless a compromise is soon reached, the trial will be a long one. It is highly unlikely that any media representative will be in attendance in court for more than a small proportion of that time. There is no point in lamenting that fact, still less in tailoring my response to this application on the basis that members of the media could attend if they chose to do so and thus put themselves in a position from which an accurate report of the proceedings could be compiled without recourse to the transcript. The reality is that the media will decide upon the level and frequency of its attendance here, as it will decide other issues concerning its priorities and the use it makes of its resources.
[3]
In these circumstances, the availability of the transcript is important. It is undesirable that the media rely on the parties for information about the case. Indeed, the ethical rules by which the legal representatives of the parties are bound inhibits them from providing to the media all the information in which the media is likely to be interested. Access to the Linter transcript will therefore promote accuracy in reporting. It will also promote transparency in the administration of justice. The fundamental importance of that goal has long been recognised by the courts. Such recognition must inform every aspect of the trial process.
[4]
As I understand their position, none of the parties to this litigation challenge any of the propositions set out above. They do, however, submit that access to the transcript should be had by a non-party only after the person seeking access has agreed to contribute a fair proportion of the very considerable cost of its production. At present, each litigant shares that cost in proportions worked out between themselves and sanctioned by the Court. Fairness demands, so the litigants submit, that their access to the transcript be on terms not significantly less favourable than those applicable to others. The particular terms applicable in a particular case should be determined after negotiations between the litigants and the relevant non-party.
[5]
Faced with these submissions last Thursday, I was unable, during the course of the trial itself, to give them the consideration which they warranted. I did, however, invite the litigants to negotiate with the Financial Review in an endeavour to reach a conclusion acceptable to all. I said that were those negotiations not successful, I would examine the issues again.
[6]
I now think that I was wrong to invite negotiations. As the owner of the copyright in the transcript, it is the State of Victoria or, by legislative authority, the Court, which must decide to whom and on what terms the transcript should be provided. So much is inherent in the very concept of copyright, which carries with it the exclusive right of reproducing copies of a published original literary work.
[7]
As I understand it, it is common ground that the State of Victoria is the owner of the copyright in such transcript as is produced following a direction made pursuant to s.130 of the Evidence Act 1958. That section empowers a person acting judicially to direct, in circumstances that apply to this litigation, that any evidence to be given in the proceeding be transcribed in any manner that the judicial officer directs. Every person who thereafter transcribes the evidence shall, in doing so, be under the direction of the Court: s.134. That position obtains here. By s.176 of the Copyright Act 1968, the ownership of the copyright in an original literary work produced under the direction of a State shall inure to that State. As one of the three arms of government of the State of Victoria, the Supreme Court is, for the purposes of this provision, the State.
[8]
Given that the litigants do not own the copyright in the transcript, it is difficult to identify any interest in respect of which they can enter into meaningful negotiations with the Financial Review or anybody else who might seek similar access. It is likewise difficult to see how any agreement which resulted from those negotiations could be enforced, even were the Court prepared to acquiesce in its making. And if the transcriber were not a party to the agreement, and were not prepared to make additional copies available at an acceptable price, there would be an additional complication - doubtless liable to resolution by the exercise by the Court of its powers under s.134 of the Act; but that itself might involve the Court becoming enmeshed in the whole process of negotiation.
[9]
The litigants' proposal that they and the Financial Review negotiate their way to a resolution of the latter's application for a copy of the transcript has, on analysis, nothing to commend it. It would result in private interests negotiating for private advantage over something in which the public, through the law of copyright and through its interest in the transparency of the administration of justice, has a vital stake. It would empower private interests to influence the media's ability to publish (subject of course to the proper constraints of the law) what it wants, when it wants. It would enable unscrupulous private interests to influence the content, and even scrupulous private interests to influence the accuracy, of reports of court proceedings. This would be particularly so in cases of great attraction to the media, with many media outlets anxious to have access to the transcript. In such cases, there might be a temptation to conduct litigation in a manner which would increase the media's interest in contributing to that cost. Even in this case, it is not unlikely that others in the media may follow the Financial Review in its application. In my opinion, it would be quite inappropriate for the litigants to be so placed that they fix, as between commercial competitors, the terms of access to the transcript.
[10]
If I were to accede to the submissions of the litigants (and so accede to their negotiating with the media, and possibly others, for access to the transcript) I would create real conundrums for the future. At some time in the future, for example, this litigation will come to an end. Someone may seek access to the transcript after the final judgment has been pronounced and after questions of cost, including the cost of the transcript, have been finally determined. The terms under which that access is granted, who should conduct the necessary negotiations, and who should benefit from any monetary contribution, are all issues which would need to be addressed. So also would the issues which would arise were access sought to the transcript of directions hearings already held, or to the transcript of the application to strike out for want of prosecution.
[11]
The issue of access to transcript of directions hearings nicely points up the logical and practical difficulties posed by the position taken by the litigants. Although the recording of the directions hearings is effected under arrangements which are not identical to those which govern the recording of the trial, nevertheless there seems no reason in principle why access to the one transcript should be on materially different terms to those governing access to the other. Yet the transcript of directions hearings is placed on the Court file and is there available for searching or copying at rates fixed by the Court; rates which are unlikely to be comparable to those fixed following the negotiations for which the litigants contend.
[12]
These problems can be overcome - and, it seems to me, only overcome - if I direct that the Financial Review, and any other applicant for access to the transcript, be granted that access on receiving the written permission of the Chief Executive Officer (only to be granted after reference to me) and on paying to the transcript provider (in this case, Spark and Cannon) the cost to the provider of making the necessary copies. By such a direction, the transcript provider will not make a profit from the exercise, the Court will not become embroiled in negotiations which ill-befit its true function and for which it is neither equipped nor resourced, and the public interest in the accurate reporting of litigation will be promoted. Of course, it will be necessary for the Court to maintain a broad monitoring role to ensure that the transcript provider is not overtaxed and that other like potential problems are, when they become apparent, solved.
[13]
I have not yet addressed the litigants' submission that this result is unfair to them. One could understand their natural reaction to the concept that others might have access to a valuable resource at a fraction of the cost which they must bear to secure like access. It is the reaction of those in the biblical parable who, having been hired for a day's work at an agreed wage, discover during the afternoon that another group of workers has been hired for half the day at the same wage. They were not amused. Here, the litigants arranged for provision of transcript at a particular price to them. That price represents a cost which is a necessary incident of litigation as complex, and as important to the parties, as is this litigation. It is a cost which, until the final disposition of the burden at the conclusion of the litigation, they must bear in the agreed proportions. In return, they obtain (I understand) both hard copy and disk, as well as the benefits of realtime recording; and they may use the material thus acquired for any purpose associated with their conduct of their case in the litigation. In this respect they are not, as a matter of practical reality, compelled to observe the requirements concerning the attribution of material sourced in the transcript which a strict application of the law of copyright might impose. In short, the position of the litigants in relation to the transcript is materially different to that of a non-party who merely wishes for the purposes of academic study, or the media, or other litigation, or otherwise, to have recourse to an accurate record of the proceeding, or part of the proceeding.
[14]
For these reasons, I will direct in the terms to which I have already referred.