The Copyright Tribunal has handed down a decision awarding surveyors payment when governments re-use their survey plans under the exception in the Copyright Act that permits governments to use material without first getting a clearance.
The decision represents the end of a very long period of negotiation and litigation between Copyright Agency and the NSW government, part of which went up to the High Court. The Tribunal set the amount payable by government as 7.94% of the price on all sales, with a deemed price for sales by information brokers who also sell copies of the plans of $14.50 + CPI. The
In reaching its decision, the Tribunal looked at various factors that included: prior negotiations between the parties (this was particularly helpful); the impact of situations where the Crown owned copyright in plans and where copyright in plans had expired; royalties for other types of material (though this evidence was not particularly helpful); and the economic evidence available.
Interestingly, the Tribunal rejected that it should take factors such as the relatively low level of creativity involved in creating survey plans into any account – stating that to do so would be to approach the assessment of “equitable remuneration” on a basis inconsistent with the nature of the rights granted by copyright. The Tribunal also noted that Copyright Agency and NSW had reached agreement that various internal uses of the plans were not remunerable.
The case (Copyright Agency Limited v NSW) is available at: