15.28 There are specific exceptions in the Copyright Act for reproduction for the purpose of judicial proceedings or a report of judicial proceedings. Like the exceptions for assisting members of Parliament, the exceptions for judicial proceedings apply to print and audiovisual material but not digital material or copies of print material. They are not qualified by any fairness requirements.
15.29 These exceptions are necessary for the proper and speedy administration of justice. As the NSW Government noted,
It is frequently the case that copyright material such as correspondence and a company’s internal documents constitute important evidence in litigation, often to support points that may be detrimental to the author or copyright owner. In other cases, it may be necessary to use works owned by third parties or in which ownership is uncertain. Multiple copies are needed of all material brought before a court or tribunal.
15.30 The rationale for these exceptions is the public interest in the smooth functioning of the legal system. They have been uncontroversial. They should be retained and updated to be technology-neutral.
15.31 The NSW Law Society suggested that, ‘given government’s increasing use of tribunals to resolve disputes, the defence should apply equally to administrative proceedings as well as judicial proceedings’. Tribunals are not part of the judicial arm of government, but are part of the executive. They are characterised by informality, and the laws of evidence do not usually apply.
15.32 The considerations are very similar for use for judicial proceedings, use for tribunal proceedings, and use for statutory inquiries (discussed below). The uses facilitate important public processes, use mostly material that is not commercially available, and do not affect the market for the original work. The Copyright Act should include an exception for use of copyright material for the purpose of tribunal proceedings.
Recommendation 15–2 The Copyright Act should provide for a new exception for the purpose of the proceedings of a tribunal, or for reporting those proceedings.
Copyright Act 1968 (Cth) ss 43(1), 104.
Intellectual Property Committee, Law Council of Australia, Submission 765; NSW Government and Art Gallery of NSW, Submission 740.
NSW Government and Art Gallery of NSW, Submission 740.
Intellectual Property Committee, Law Council of Australia, Submission 765.
Garry Downes, ‘Tribunals in Australia: Their Roles and Responsibilities’ (2004) 84 Reform 7.