Posted on April 30, 2012 by

Copyright vs the GIPA Act

In March 2012, the Office of the Information Commissioner (‘OIC’) issued a ‘knowledge update’  on ‘Copyright and compliance with the GIPA Act’ (‘the Update‘).

The Update discusses  advice received by the OIC on the relationship between the obligations upon local councils to provide access to development applications (DAs) and plans associated with DAs and the application of copyright legislation to those plans.

The issue

At issue is how a local council can fulfill it’s disclosure requirements under the Government Information (Public Access) Act 2009 (‘GIPA Act‘) without infringing the copyright of the copyright owner of the plans and other documents associated with DAs that have been submitted to the council.

The law

Under section 6 of the GIPA Act it is mandatory for agencies to make certain information publicly available unless there is an overriding public interest against disclosure.

Section 6 (6) of the GIPA Act states:

(6) Nothing in this section or the regulations requires or permits an agency to make open access information available in any way that would constitute an infringement of copyright.

Schedule 1, item 3 of the Government Information (Public Access) Regulation 2009 (‘GIPA Regulation‘) lists DAs and any associated documents received in relation to a proposed development as a type of information that must be made publicly available under section 6 of the GIPA Act.

Under section 31 of the Copyright Act 1968 (Cth) owners of ‘works’ are given exclusive rights to do certain acts in respect of those ‘works’. These rights include the exclusive right to publish the work.

Pursuant to section 36 of the Copyright Act, a person’s copyright is infringed where ‘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.‘ [My emphasis]

The licence referred to in section 36 may either be express or implied.

Infringement of an owner’s copyright may also be avoided where there is a statutory licence (see section 183 of the Copyright Act) or a statutory defence is applicable (see sections 40 and 41 of the Copyright Act).

The advice of the Crown Solicitor

The OIC obtained advice from the Crown Solicitor on the issue.

The Crown Solicitor advised that the Copyright Act applies irrespective of the requirements of the GIPA Act or Regulation. This is, no doubt, because the copyright Act is Commonwealth legislation and therefore prevails over State legislation to the extent of any inconsistency.

The Crown solicitor further advised that unless there is a relevant licence, a council will always be in breach of the Copyright Act when copying, publishing and distributing documents under the GIPA Act to which copyright applies.

In the opinion of the Crown Solicitor local councils do not hold a statutory licence to use copyright material under section 183 of the Copyright Act. Further, the Crown Solicitor advised that the defences of fair dealing in section 40 and 41 of the Copyright Act ‘do not apply to a local council in respect of publishing or copying material subject to the GIPA Act.’

In the opinion of the Crown Solicitor it is ‘unlikely that local councils could rely on an implied licence to reproduce plans’. The Crown Solicitor reasoned that:

‘there is nothing in an architect’s conduct in preparing plans to be submitted as part of DA that can be taken as constituting an abandonment of his or her exclusive rights conferred by the Copyright Act, especially where the rights to be infringed occur from councils’ uses connected to the GIPA regime rather than the DA regime.’

The Crown Solicitor also advised upon the role of clause 57 of the Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation‘). Clause 57 states:

Upon a development application being made under section 78A of the Act, the applicant (not being entitled to copyright) is taken to have indemnified all persons using the development application and documents in accordance with the Act against any claim or action in respect of breach of copyright.

In the opinion of the Crown Solicitor, the indemnity provided by clause 57 applies ‘only to things done under the EPA Act. It does not cover reproduction or distribution of copyright material under the GIPA Act.‘

The OIC ultimately concludes that:

• Local councils should NOT publish any copyright material on websites, or provide any copies (including by email) under the GIPA Act unless the copyright owner has expressly consented.
• For the purpose of fulfilling their functions under the EPA Act, local councils should continue to provide copies of DA plans and other copyright material, relying on the indemnity in clause 57 of the EPA Regulation. This indemnity applies during the submission period of the assessment phase.

Discussion

The ultimate advice does not appear to recognise the distinction between an indemnity (which is provided for under the EPA Act) and the actual breach of copyright to which it relates.

This distinction is an important one. The existence of an indemnity does not make the indemnified conduct lawful. The council will still be in breach of the Copyright Act if it makes copies of copyright material, unless there is a licence from the copyright owner that is found to apply.

Town planners have suggested that ‘the law needs to be changed to require applicants, architects, planners and other experts to sign a copyright waiver when lodging a DA with a council.‘ (Sydney Morning Herald, Tuesday 3 April 2012 – Copyright law hinders efforts to open up planning process). Assuming such a waiver were wide enough to extend to all aspects of and beyond the DA regime such as access under GIPA, this would alleviate the problem faced by local councils.

The Crown Solicitor’s opinion that it is unlikely that local council’s can rely on an implied licence to reproduce an architect’s plans or other documents associated with DAs is also quite problematic.

It seems that there are sound policy reasons why there should be considered to be an implied licence to use material submitted in relation to a DA for the all of the necessary purposes including  assessment , enforcement of the terms of any consent and third party access.

Afterall, development consents run with the land. To forbid the publication of the terms of the approval in perpetuity considerably diminishes the Council’s ability to regulate development and third parties to participate in the development process.

In other contexts, the  courts have, for example, recognised implied licences in the commissioner of plans. For example, in the High Court decision in Concrete Pty Ltd  Parramatta Design and Developments Pty Ltd [2006] HCA 55 the Court affirmed that ‘if an architect is engaged to prepare plans… and is paid a professional fee…if the fee would normally be taken to cover the use of the plans and drawings for the purpose of constructing a building in substantial accordance with them, the commissioner of the plans and drawings…will have an implied licence to use the plans and drawings for that purpose.‘

The court also recognised that the ‘preparation of plans and drawings as part of an application for a development consent by a local council is part of a progressive process governed by legislation.’

Practical steps

Pending clarification of the above issues, some practical steps that can be taken to minimise the risk of infringement of copyright as a result of the GIPA process include the following.

• Ask for multiple copies of plans (that have been copied with the consent of the copyright owner) to be submitted with future DAs. These documents can then be distributed when access is provided under GIPA.
• Provide ‘view only’ access to DAs and associated documents under GIPA.
• Provide photocopying facilities for the public to make copies with notices near the photocopiers which alert the user to their copyright obligations. The Crown Solicitor suggested that in some circumstances members of the public may be able to utilise the fair dealing defences of the Copyright Act to make lawful copies of plans.

Reform

The Department of Planning and Infrastructure has has indicated that ‘the issue of copyright, and the need for transparency in the NSW planning system, are being examined as part of the NSW Planning System Review’.

It seems that a simple step that could be taken would be to amend the requirements for a development application to specify that all documents submitted must be accompanied by a licence from the copyright owner allowing the use of the DA documents for the relevant functions of the consent authority both prior to and after the granting of any consent.