Copyright Agency Limited v Universities Australia (Interim Orders) [2019] ACopyT 2

20 May 2019

On 8 May, Justice Perram of the Copyright Tribunal set down an interim order in relation to an ongoing application brought by Copyright Agency Limited (CAL) in relation to the various universities across Australia (the Universities). 

CAL’s application and the interim order

In November 2018, CAL applied to the Copyright Tribunal to decide the methodology for ascertaining, as well as the amount of, equitable remuneration payable to CAL by the thirty-nine various universities of Australia under the educational statutory licence for the period 1 January 2019 to 31 December 2024. The educational statutory licence set down by the Copyright Act is the means by which educational institutions, such as universities, may copy and communicate works including textual material and images for an educational purpose, pursuant to a remuneration agreement between the licensed educational institution and CAL. The provisions that set out the educational statutory licence were amended in December 2017.
The Copyright Tribunal is yet to make a final determination on the November 2018 application. In the meantime, CAL applied for interim orders under section 60 of the Copyright Act, namely that until its application is determined, the Universities should continue making CAL payments as set by the May 2017 licence agreement, in the amount of $32.5 million. This was resisted by the Universities, who argued that they should only pay half this amount to CAL, and the other amount into an interest-bearing account pending the final determination of CAL’s November 2018 application.

The interim order

Justice Perram noted that given that the current application was only in regard to an interim order, not a final determination of the original November 2018 application, it was not useful to examine the correctness of either party’s argument, beyond observing that for present purposes, both parties’ positions appear reasonable. Justice Perram read that section 60 does not permit the making, on a purportedly interim basis, of orders that are actually final in nature. On this basis, Justice Perram therefore proceeded on the form of the interim order as proposed by the Universities (an amount paid to CAL, and another amount put into an interest-bearing account pending the final determination). This left the question of what annual amount should be ordered as being payable to CAL.

The amount

Justice Perram noted that the choice before him was between two “quite unattractive outcomes”.On one hand, if the Tribunal ordered an interim payment in the higher amount sought by CAL, it was possible that the Universities could succeed in persuading the Tribunal to award a lower amount which would leave them irremediably out of pocket for the difference. Justice Perram did not accept CAL’s submissions that the fact that Universities are in receipt of very large sums of money which dwarf the amounts in dispute here means they suffer no substantive prejudice.
On the other hand, if the Tribunal ordered an interim payment in the amount sought by the Universities, this may cause harm to those who depend on CAL payments as an income stream. In this regard, several CAL stakeholders including Federation Press, the Australian Publishers Association and the Australian Society of Authors made submissions as to the effect a reduction in CAL payments would have, including a reduction in full-time publishing staff and financial hardship on authors. 

The decision

Justice Perram noted that the hardships identified by CAL were somewhat limited in scope, and it seemed to him, that the potential irremediable harm to the Universities was greater in extent than to the members of CAL. He noted that if his final determination was such that CAL is entitled to more payments, their members would then receive their payments, albeit delayed, which he viewed as an inconvenience, not hardship, as opposed to the alternative outcome under which the Universities would not be able to recoup the money paid. 
Accordingly, Justice Perram came to the view that the appropriate interim order was the amount proposed by the Universities. He noted that in doing so, while the Tribunal would ordinarily be reluctant to make an interim order that alters the remuneration amount so recently agreed to in 2017, he noted that the 2017 Agreement was originally expressed to be an interim one, and not used for the purpose that had been pursued by CAL.