Posted on May 20, 2020 by Brigitte Elvy and Stuart Simington

A reminder when dealing with copyright material under the GIPA Act

The NSW Civil and Administrative Tribunal has again dealt with a dispute concerning public access to copyright material under the Government Information (Public Access) Act 2009 (GIPA Act). While the facts of this case are similar to those of a case that we wrote about previously  (here), this case is a good reminder to Councils to keep copyright provisions in mind when granting access to documents associated with development applications.

In Brown v Wingecarribee Shire Council [2020] NSWCATAD 102, the Applicant had applied to the Council for physical and electronic access to two reports relating to the Applicant’s property.

The Applicant claimed the building suffered from defects.

One of the reports was an access report intended to provide information. The other report contained a series of drawings, notes and plans (Reports).

The Applicant was seeking access for the purpose of commencing legal proceedings against the Council.

In deciding whether to grant the access requested, the Council consulted the authors of the Reports, both of whom refused consent to their release by physical or electronic means. To avoid infringement of copyright, the Council granted access on an ‘inspection only’ basis. The proceedings were bought by the Applicant to challenge the form of access granted.

The Copyright Act 1968 (Copyright Act) restricts certain development application materials from being reproduced by Councils under the GIPA Act (see here). 

In this case, the two Reports were also held to be protected by copyright, such that physical or electronic release of the documents would amount to an infringement of copyright.

Relevantly, however, the Applicant argued that the Reports were exempt from copyright protection under the ‘fair dealing‘ provisions of the Copyright Act.

The section relied upon was s43 which provides that copyright will not be infringed by ‘anything done for the purposes of judicial proceedings’ (s43(1)), or if such infringement occurred for the purpose of giving legal advice (s43(2)).

On this point, the Tribunal concluded that:

  1. given that the Applicant had not yet commenced proceedings against Council, there were no judicial proceedings in existence such that s43(1) could apply to (referring to the decision in Sandy v Kiama Municipal Council [2019] NSWCATAD 49 at [44] – see our blog here);
  2. the Applicant was not giving legal advice and therefore could not rely on this exception to obtain access the documents (referring to the decision in Volunteer Echo Students Abroad Pty Limited v Reach Out Volunteers Pty Limited [2013] FCA 731 at [315]).

The Tribunal therefore agreed that the Council’s decision to provide ‘inspection only’ access to the Reports was the correct and preferable approach.

This decision reflects the Tribunal’s repeated position that granting access on an ‘inspection only’ or ‘view only‘ basis is the appropriate way for Council’s to deal with GIPA applications for access to materials protected by copyright.

A copy of the judgment is here.

If you have any questions about this blog, please contact Stuart Simington on 8235 9704 or Brigitte Elvy on 8235 9707.