Posted on April 3, 2013 by
Copyright v EPA Act – have things changed?
In April 2012, LTL wrote about some of the difficulties faced by local councils in fulfilling their obligations to make certain information, such as development applications (DAs) and accompanying documents, publicly available, whilst at the same time avoiding a breach of copyright legislation.
Since then, the Environmental Planning and Assessment Act 1979 (EPA Act) has been amended to include a new provision extending the indemnification given to councils in some circumstances. Whilst the amendments have some benefits, they do not overcome a number of the problems faced by councils in this regard.
Under the Government Information (Public Access) Act 2009 (GIPA Act), councils are obliged to make certain information, including DAs and accompanying documents, available to the public, unless there is an overriding public interest against disclosure.
However, fulfilment of these obligations could result in a council breaching the copyright in these documents.
Prior to the recent amendment, cl57 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), provided that an applicant (not being entitled to copyright) was taken to have indemnified all persons using the DA and accompanying documents ‘in accordance with the Act’ against any claim or action for breach of copyright.
Whilst cl57 indemnified councils for the use of documents ‘in accordance with the Act’, it did not make it lawful for councils to make copies of material that was subject to copyright, unless a licence existed authorising copies to be made.
Nor, arguably, did cl57 authorise publication by a council of a DA and accompanying documents on its website.
Clause 57 also did not extend to reproduction of material by a council under the GIPA Act.
The new provision
The amendments inserted a new provision, s158A, into the EPA Act. Section 158A(1) states:
A relevant person who is not entitled to copyright in a document that is part of a planning matter is taken to have indemnified all persons using the document for the purposes of this Act against any claim or action in
respect of a breach of copyright in the document. [my emphasis]
Section 158A(2) sets out what constitutes a ‘planning matter’ and who the ‘relevant person’ is.
Section 158A(3) provides that a document is part of a planning matter if ‘it forms part of or accompanies the planning matter, or is subsequently submitted by the relevant person in support of the planning matter or is exhibited or made public in accordance with a requirement made by or under this Act in relation to the planning matter.’
The indemnification provided by s158A is wider than that provided by cl57. Clause 57 only covered a development application made under s78A of the Act. In contrast, s158A extends to a Part 3A project or concept plan, environmental impact statement under Part 5 or 5.1 and a planning proposal under Part 3 of the Act.
The indemnification under s158A also extends to the use of documents ‘for the purposes of the Act’ which is arguably broader than use of documents ‘in accordance with the Act’, as provided for under cl57.
However, s158A still only operates to provide an indemnity to councils, and the changes to the EPA Act do not have any impact on the provision of information under the GIPA Act.
As previously recommended, councils should, where possible, take practical steps to minimise the risk of copyright infringement by:
– asking for multiple copies of DA plans (copied with the consent of the copyright owner) to be provided with DAs;
– providing ‘view only’ access to DAs and accompanying documents under the GIPA Act;
– providing photocopying facilities for the public to make copies of documents, and displaying appropriate notices regarding the user’s obligations under copyright legislation.