In a joint judgment delivered on 6 August 2008, the High Court allowed an appeal relating to government use of surveyors’ plans.

The State of NSW uses survey plans lodged with Land and Property Information (LPI), a government agency, for a variety of purposes, including sale to members of the public and sale via information brokers. Copyright Agency Limited (CAL) had argued, on behalf of the surveyors, that the use of the plans was subject to a remunerated statutory licence, not a free implied licence as the State contended.

The Federal Court had held that the State of NSW’s use of surveyors’ plans was for the services of the State, within the meaning of s 183 of the Copyright Act. But it said that the State had an implied licence to use the plans and was therefore not obliged to pay equitable remuneration as required by s 183. The Federal Court held that the surveyors “must be taken to have licensed and authorised the doing of the very acts that the surveyor was intending should be done as a consequence of the lodgment of the [plans] for registration”.

The High Court held that there was no implied licence relating to the “public” use of the plans, either in the surveyors’ contracts with their clients or independently of these contracts. The Court’s reasons included that there was no necessity to imply such a licence, and that the State charged for copies supplied.

The State of NSW did not appeal the Federal Court’s finding that it did not own copyright in the plans. The Federal Court rejected the State of NSW’s arguments that it owned copyright because the plans were made under its direction or control, and/or the plans were first published by it. The Federal Court held that the plans were first published when they were provided by the surveyors to their clients.

Copyright Agency Limited v State of New South Wales [2008] HCA 35