Posted on April 8, 2019 by Matt Harker and Carlo Zoppo
The Perils of the Copyright Act and Development Applications
The Copyright Act: long, complex, outdated, and a potential trapdoor for local councils when dealing with documents accompanying a development application. The NSW Civil and Administrative Tribunal has recently handed down a decision which illustrates the difficulties for councils in balancing the demands of GIPA applicants and respect for copyright.
This blog seeks to illustrate those difficulties in light of the decision in Sandy v Kiama Municipal Council  NSWCATAD 49. It will identify what the Tribunal suggests is the means for councils to comply with their obligations under the Copyright Act and meet the demands of residents in the context of the Government Information (Public Access) Act 2009 (GIPA Act).
Sandy concerned an application under the GIPA Act for access to information held by the Council in relation to a development application for an abattoir. The Council granted access to some documents but decided to provide view-only access to plans and expert reports lodged with the development application. This was because they were subject to copyright.
The Applicant demanded copies of those documents. He argued that a limited view of the information was impractical. It would prevent him from being able to fully engage with the complex documents, and obtain legal advice.
The entire case revolved around whether reproducing plans and expert reports for the benefit of a local resident would amount to a breach of copyright. If so, Council could provide view-only access to the documents under s 72 of the GIPA Act.
When will there be a breach of copyright?
Section 36(1) of the Copyright Act 1968 sets out when there will be a breach of copyright. It provides that:
Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by 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.
From this provision, we can draw three key components of an infringement of copyright:
- there must be an original literary, dramatic, musical, or artistic work;
- you do something which is ‘comprised in the copyright’; and
- you do not have a licence (which includes an implied licence) from the owner of the copyright to do that thing.
The Tribunal in Sandy held that the architectural plans (as artistic works) and expert reports (as literary works) which accompanied the DA were subject to copyright. In this regard, the Tribunal drew upon some important principles about when a work will be original. The Tribunal stated that:
… “originality” means that the creation or production of the work required some independent intellectual effort, but novelty or inventiveness is not required. The work must have originated “with an author or joint authors from some independent intellectual effort” … The work must originate with the author and be more than a copy of other material … However an artistic work based on another work can attract its own distinct copyright if a sufficient degree of labour and skill has been expended by the author to give the work “some quality or character which the same material did not possess, differentiating the product from the raw material” …
What is comprised in the copyright?
Copyright gives the owner an exclusive right to perform certain acts. These are defined in s 31 of the Copyright Act and include:
- reproducing a work in a material form;
- publishing a work; and
- communicating the work to the public.
This does not sit well with the production of open access information under the GIPA Act:
- by uploading DA plans and reports to its website, a Council publishes those documents;
- by photocopying plans to give to GIPA applicants, a Council is reproducing a work; and
- by emailing plans to GIPA applicants, Council may be reproducing a work or communicating it to the public.
Furthermore, the Tribunal made clear in Sandy that authorising another person to reproduce a document will also amount to a breach of copyright. Councils cannot avoid the requirements of the Copyright Act by facilitating residents copying documents themselves.
In those circumstances, the only means by which Council could reproduce documents to a GIPA applicant and simultaneously respect copyright, is if it has a licence to do so.
The Applicant in Sandy sought to rely upon the Environmental Planning and Assessment Act 1979 to suggest that Council had an implied licence to produce copyright material to residents. The Applicant argued that in order for the development application to be properly processed, the works would need to be reproduced.
Indeed, it could be argued that if a Council is to facilitate public participation in the development assessment process, reproduction of documents, or at least their publication online, is integral. In that context, consultants creating documents for the purposes of a development application could be argued to grant an implied licence to Council.
This view, however, has not yet garnered support in the courts. The Tribunal in Sandy rejected the argument of an implied licence. Even if a licence had been given, the Tribunal held that it was not for the purposes of the GIPA Act.
How does a council deal with a GIPA application for copyright material?
As there was no implied licence, the Tribunal held that Council would breach copyright by copying the plans and reports. Accordingly, Council should provide ‘view only’ access to the documents under s 72 of the GIPA Act.
The Tribunal has held repeatedly that this is the appropriate approach for councils when dealing with a GIPA application for copyright material. It is also reflected in guidance issued by the Information and Privacy Commission on copyright and compliance with the GIPA Act. In this regard, the Information Commissioner has advised that councils:
- ‘consider asking for multiple copies of plans, copied with the consent of the copyright owner, to be submitted with future DA applications…;
- … provide “view only” access to DA plans; and
- may provide photocopying facilities for the public to make copies of plans for the purpose of research and study, with notices near alerting users to their copyright obligations (these notices do not provide indemnity, but may assist councils in the event any claim is made that they are authorising infringement of copyright). Councils should make sure that staff understand they must not provide any copyright advice to members of the public, nor expressly permit them to copy plans.’
The Tribunal and the IPC have not directly addressed how councils deal with copyright issues in other aspects of their activities. Whilst this blog, and the decision in Sandy, focus on the GIPA Act, copyright issues regularly arise in the development assessment process, as well as in the exercise of other council functions. Councils should take great care to avoid a breach of copyright whenever they are thinking of distributing, copying, or publishing plans, reports, or other documents that may be subject to copyright.
You can read the judgment of the Tribunal in Sandy here.
If you have any questions about the implications of the Copyright Act, or wish to discuss this blog, please contact Matt Harker on 8235 9714, or Carlo Zoppo on 8235 9705.