Posted on January 9, 2020 by Matt Harker and Carlo Zoppo

What is best practice when dealing with copyright material?

The NSW Civil and Administrative Tribunal has further elaborated on the responsibilities of local councils in dealing with applications for access to copyright material under the Government Information (Public Access) Act 2009.

Hoggett v Campbelltown City Council [2019] NSWCATAD 258 concerned an application by the purchasers of a unit in a new development. The purchasers alleged that the building contained numerous defects and sought access to architectural, engineering, and subdivision plans in order to obtain legal advice.

The Council determined to provide ‘view only‘ access to the documents in order to avoid the infringement of copyright.

We previously blogged on the difficulties associated with the interaction of the Copyright Act 1968 and Council’s handling of GIPA applications for documents associated with development applications. That blog can be accessed here.

In a short judgment in Hoggett, Senior Member Hamilton made a number of points which, in addition to those in our blog, are of particular significance to local councils. Significantly, the Senior Member held that:

  • Council went above and beyond what it was required to do by seeking permission from the owners of the copyright to provide copies of the documents to the purchasers;
  • in any event, that conduct is ‘probably good practice‘; and
  • the exception in respect of the breach of copyright for the purposes of the giving of legal advice does not apply to the seeking of that advice.

The comments with regard to legal advice reflect an earlier judgment of the Federal Court in Volunteer Eco Students Abroad Pty Limited v Reach Out Volunteers Pty Limited [2013] FCA 731. The Copyright Act elsewhere draws a distinction between the giving and seeking of legal advice. Therefore in the specific context of the Copyright Act, the better view is that there is no exemption to allow the breach of copyright for the purposes of seeking legal advice. 

So far as the Senior Member suggested that obtaining consent from the copyright owners represented good practice, this will be difficult particularly when a Council is dealing with an application for documents associated with an old development application.

As the Senior Member pointed out, however, there is no obligation upon the Council to do so. Council can comply with its obligations under the GIPA Act and the Copyright Act, while at the same time limiting the drain on its resources associated with the determination of GIPA applications, by providing ‘view only‘ access to documents.

In that context, and despite the comments of the Senior Member about best practice, it may be more appropriate for Councils to merely provide ‘view only’ access to documents.

A copy of the judgment can be accessed 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.