Copyright Licensing Ltd v University of Auckland & Ors
High Court of New Zealand
Salmon J
29, 30, 31 January, 22 February 2002
Copyright - interpretation - fair dealing - criticism and review - reporting of current events - research or private study - copying by educational institutions - multiple copies for course books and class sets - copying by librarians from published editions and journals - whether multiple copies may be made - whether librarians can copy of own volition - need for a prior request to librarian -
Copyright Act 1994 ss40, 42, 43, 44, 51, 52 and 93
The plaintiff is a licensing body which operates a licensing scheme on behalf of publishers and authors in respect of the reprographic copying of extracts from published literary and dramatic works such as books, periodicals and journals. Since 1995 the plaintiff had (with one exception) licensed for a fee the defendant Universities to reprographically copy copyright material for distribution to students. The Universities provided such copied material as part of bound or unbound course packs or class sets and in varying ways, charged students for the provision of these.
A dispute arose between the plaintiff and defendants (all the Universities in New Zealand) over the terms of the licence for the 2000 and 2001 academic years. In particular, the dispute concerned the extent to which the Universities were able to undertake free multiple copying of published copyright works without the need for a licence.
In this proceeding, the parties sought a series of interpretative rulings on the scope of five provisions in the Copyright Act 1994 - the fair dealing provisions (sections 42 and 43), the educational copying provision (section 44) and the librarian provisions (sections 51 and 52). The relevant provisions are set out in the judgment.
Held:
Fair Dealing for Criticism or Review: section 42(1)
(1) The copying must be done by or on behalf of the person undertaking the criticism or review. The purpose is to be judged objectively and the relevant purpose is that of the copier (paras [29] and [35]).
Pro Sieben Media AG v Carlton UK TV Limited [1999] FSR 610, 620; Banier v News Group Newspapers Limited [1997] FSR 812, 815 referred to.
(2) It would not be possible for lecturers to genuinely copy for the purposes of review or criticism on behalf of a student unless that student had specifically requested the copy. Because the question posed of the Court related to the making of multiple copies of works (for course packs or class sets), there could be no suggestion that the copying had been undertaken at the specific request of a particular student (paras [36] and [37]).
(3) The question whether multiple copying of the whole or part of a work for inclusion in course packs or class sets is fair dealing with a work for the purposes of criticism or review will depend on whether the copying has been undertaken by or on behalf of a person for the purposes of criticism or review of the work copied and is included by that person in the course pack, compilation or class set for those purposes (para [38]).
Fair Dealing for Reporting Current Events: section 42(2)
(4) While the expression “current events” has been given a liberal interpretation by the courts, the material copied need not be current provided it is used properly to report current events (para [39]).
Pro Sieben Media AG v Carlton UK TV Limited [1999] FSR 610, 620; Associated Newspapers Group Plc v News Group Newspapers Limited [1986] RPC 515 referred to.
(5) It is difficult to think of any circumstances where the reporting of current events would occur other than in some section of the news media. Such an activity does not spring to mind as being a function of the University. The multiple copying of the whole or part of a work for inclusion in course packs or class sets is not fair dealing for reporting current events unless the person copying the work has done so for that purpose and that person has included the work in the course pack, compilation or class set (paras [41] and [42]).
(6) It is not fair dealing for the purposes of criticism or review or for reporting current events for the Universities to make a master copy of the whole or part of a work and then:
(a) to make the master copy available to students (enrolled in a course of instruction) to copy themselves;
(b) to provide an individual reprographic copy or individual copies of it to students (enrolled in a course of instruction).
The copying here was not for the purposes of criticism or review or for reporting current events but for the purpose of making it available to students to copy themselves or to make further copies to provide to students (para [48]).
Copyright Agency Limited v Victoria University of Technology (1994) 29 IPR 263 distinguished.
Fair Dealing for Research or Private Study: section 43
(7) It was not fair dealing for the purposes of research or private study for the Universities to make a master copy of the whole or part of a work and then:
(a) to make the master copy available to students (enrolled in a course of instruction) to copy themselves;
(b) to provide an individual reprographic copy or individual copies of it to students (enrolled in a course of instruction);
(para [54]).
(8) Section 43(4) gives emphasis to the proposition that the purpose (i.e. research or private study) must be that of the person doing the copying. That person may make a specific request of another to obtain a copy but the emphasis must always be on the needs of the person requiring the copy. The immediacy of the relationship between the copying and the purpose would be lost if the University produced the copies - particularly if the copying is done at the commencement of the semester without any request from the student who later receives the copy (para [59]).
(9) The restriction in section 43(4) “Nothing … authorises the making of more than one copy of the same work or same part of the work on any one occasion” is intended to refer to a particular occasion of use or resort to the copyright work for the purposes of research or private study (paras [62] and [63]).
Copying for Educational Purposes: section 44
(10) The purpose of section 44(1) is to allow a person giving a lesson at an educational establishment to copy a work to assist him or her in providing that instruction. The clear intent is to enable copying by the instructor for the instructor’s purpose of preparing and giving the lesson (paras [67], [69], [71] and [72]).
(11) It is not permissible for the Universities or their employees to make a master copy of the whole or part of a work or edition and then:
(a) to provide an individual reprographic copy or individual reprographic copies of it to students (enrolled in a course of instruction); or
(b) to make it available to students (enrolled in a course of instruction) to copy themselves; (paras [73] and [74]).
(12) The restriction in section 44(1)(d) that “no more than one copy of the whole or part of the work or edition is made on any one occasion) is a reference to the course of preparation of a lesson or the giving of that lesson by the teacher (para [75]).
(13) Section 44(3)(e) places a restriction on multiple copying for educational purposes that “No charge is made for the supply of a copy to any student who is to receive, is receiving or has received a lesson”. A “charge” is made:
(a) where the Universities charge the student a separately identified sum in addition to or as part of course/tuition fees covering (in whole or in part) reprographic copying (paras [77] and [82]);
(b) where the Universities charge the student a specific fee per course pack (paras [77-8] and [82]);
(c) where the Universities recover (in whole or in part) the cost of the reprographic copying as part of the student’s overall course fee (para [79] and [82]).
(14) Section 44(3)(f) which applies a restriction of 3% of the work or edition or 3 pages of the work or edition (whichever is the greater) allows multiple copying only where the amounts do not exceed the permitted limit. If more is copied than is permitted by paragraph (f), the copy is an infringing copy (para [87]).
(15) Under section 44(3)(f)(ii) where the collective work is a compilation of works of the same author the reference to “work” is the reference to each work in the compilation (paras [92] and [93]).
(16) Under sections 44(3), (4) and (6), the successive copying of a work or edition by an educational establishment is permissible such that in due course the entire work is copied provided that there is a 14 day interval between successive occasions of copying and the other requirements of section 44(3) are complied with (paras [94] and [95]).
Copying by Librarians: sections 51 and 52
(17) Under section 51, it is implicit that a request must be made by, or at least on behalf of, the person wanting to use the copy for the purposes of research or private study. The words in section 51(1) “the librarian … may … make … for supply to any person, a copy …” contemplates a discrete instance of a librarian responding to a request and then supplying the single copy to a particular person. The reference in sub-section (2) to supply “one copy” and payment for “the copy” supports that interpretation (para [103]).
(18) Under section 51, librarians of University libraries are not permitted to make from a published edition, multiple or repeated copies by reprographic process of a reasonable proportion of literary or dramatic works for provision to individual students as part of course packs, compilations or class sets where the multiple or repeated copying was undertaken all at the same time. Such copying may be done on successive occasions upon request by different students. The use to be made of the copied material is a matter for the student rather than the librarian. However, if a librarian knew that a student was obtaining a copy for a purpose other than research or private study, he would, no doubt, be a party to a non-permissible copying (paras [103] and [104]).
(19) The same reasoning applies in respect of the multiple copying of periodicals under section 52 (para [116]).
(20) It is a requirement under section 51 that there must be a prior request for the work by the student supplied with the copy (paras [105] and [112]).
(21) Under section 51 the allowable copying (permitted by that section) can be undertaken by a student on behalf of the librarian from the original published edition provided that the librarian is satisfied that the provisions of section 51(2) will be complied with. But such copying may not be undertaken from a master copy. There must be a request of the librarian by the person wanting the copy. A librarian is not permitted to make a master copy in anticipation of requests (paras [109] and [111]).
(22) Under sections 51 and 52 in relation to the restriction that “no person is supplied on the same occasion with more than one copy of the same material/same article”, the “occasion” must be the occasion of the request for the copy of the particular material or article (para [115]).
(23) Under section 52 a librarian cannot copy the whole of a work and then from time to time make this available to a person who with the librarian’s knowledge then makes a further copy or copies for supply to students (para [117]).
(24) Under section 52 it is a requirement that there be a prior request for the work by the student supplied with the copy of the periodical (para [118]).
Counsel
A H Brown and J Doherty for plaintiff
R J Katz and VTM Bruton for defendants