Copyright Agency Limited v State of NSW

In a decision delivered on 5 June 2007, the Full Court of the Federal Court rejected a claim by the NSW government that it owns copyright in surveyors’ plans registered with it. The government argued that it owned copyright because the plans were made under its direction or control (under s 176 of the Copyright Act) and/or because the plans were first published by it (under s177). The court held that the plans were not made under the direction or control of the government merely because the plans complied with stringent statutory requirements. The court also held that the plans were first published when supplied by the surveryors to their clients, and therefore were not first published by the government.

The court held that the government’s use and supply of the plans was covered by s183 (use for the services of the government), but that the government had an implied licence from the surveyors to use and supply the plans, including for a fee. This meant that the government was not obliged to pay for its use of the plans.

Although not necessary to its judgment, the court went on to hold that the entry of data from one of the plans into a database known as the Digital Cadastral Database did not reproduce the plan.

The case was a reference to the Federal Court on issues of law by the Copyright Tribunal. Copyright Agency Limited, whose members include surveyors, had made an application to the Tribunal for a determination under ss183 and 183A of the Copyright Act.

Copyright Agency Limited v State of NSW [2007] FCAC 80

For the decision, click here.