The decision in Amos v Central Coast Council [2018] NSWCATAD 101 provides insight into how copyright interacts with requests to access information about developments.

The case revolved around two technical reports that the applicants sought to access as part of their dispute with the Central Coast Council over neighbouring development works. While the Council allowed inspection of the reports, it refused to provide copies, citing copyright concerns. This article delves into the Tribunal’s key findings on copyright.

Copyright and Access Forms under the GIPA Act

Section 72 of the Government Information (Public Access) Act 2009 (GIPA Act) governs the forms of access to government information. While applicants can request copies of documents, the provision of a copy is subject to certain limitations. Section 72(2)(c) allows an agency to deny copy access if doing so “would involve an infringement of copyright.”

The Tribunal found that the reports in question were literary works under the Copyright Act 1968 (the Copyright Act) and that copyright subsisted in them. The authors of the reports explicitly objected to the provision of copies, citing their copyright. Consequently, the Council allowed inspection of the reports but declined to provide copies, relying on section 72(2)(c).

Key Issues Addressed by the Tribunal

1. Implied licence argument – the applicants argued that there was an implied licence to copy the reports because they were prepared for specific environmental and planning purposes at the Council’s request. However, the Tribunal found no evidence of such a licence and noted that, even if it had existed, the authors’ objections would have revoked it.
2. Fair dealing exception – the applicants contended that providing copies would not infringe copyright due to the fair dealing exception under section 41 of the Copyright Act. This provision allows copying for purposes of criticism or review, provided there is sufficient acknowledgment of the work. The Tribunal clarified that the fair dealing exception applies to the person performing the copying. In this case, it was the Council that would be reproducing the reports, not the applicants. The Council’s purpose in providing copies -fulfilling its obligations under the GIPA Act – did not align with the purposes of criticism or review required under section 41. Therefore, the fair dealing exception did not apply to the Council.
3. Jurisdiction to consider copyright exceptions – the Council argued that the Tribunal lacked jurisdiction to consider copyright exceptions under the Copyright Act. However, the Tribunal rejected this argument, confirming its ability to assess whether providing copies would involve an infringement of copyright within the meaning of section 72(2)(c) of the GIPA Act. This included consideration of whether exceptions, such as fair dealing, applied.

Tribunal’s Conclusion

The Tribunal affirmed the Council’s decision to deny copy access, finding that providing copies of the reports would involve an infringement of copyright.

The decision highlights the nuanced interplay between copyright protections and access rights under the GIPA Act. While agencies must facilitate access to government information, they are also bound to respect the intellectual property rights of third parties.

Implications for Future Access Requests

This case underscores the following principles for local councils and applicants:

• Copyright considerations – local councils must consider copyright when determining the form of access to information. If providing copies infringes copyright, inspection access may be an appropriate alternative.
• Fair dealing limitations – applicants cannot rely on their intended use of the information to invoke fair dealing exceptions. The focus is on the purpose of the entity performing the copying.
• Council’s role – local councils need to balance their obligations under the GIPA Act with third-party intellectual property rights. Clear communication with applicants about these limitations is essential.

For access applicants, understanding these principles can help in framing requests and navigating disputes over access forms. For local councils, this case reinforces the importance of ensuring that access decisions comply with both the GIPA Act and copyright law.

Further reading

A copy of the judgment can be accessed below.