209._org_Information and Privacy Commission NSW
Information and Privacy Commission
Submission to the Australian Law Reform Commission
Issues Paper 42 - Copyright and the Digital Economy
November 2012

Focus of this submission
This submission deals primarily with the interaction between the Copyright Act 1968 (Cth) (Copyright Act) and the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), and the issues this causes for local councils in New South Wales. As such, the focus is on the Crown use of copyright material and questions 33 and 34 in IP 42:

Question 33. How does the Copyright Act 1968 (Cth) affect government obligations to comply with other regulatory requirements (such as disclosure laws)?

Question 34. Should there be an exception in the Copyright Act 1968 (Cth) to allow certain public uses of copyright material deposited or registered in accordance with statutory obligations under Commonwealth or state law, outside the operation of the statutory licence in s 183?

The IPC does not pose any specific solutions, but wishes to draw the ALRC’s attention to the difficulties being caused for local government.
About the IPC
The Information and Privacy Commission (IPC) oversees the implementation of information access and privacy laws in New South Wales. The Information Commissioner has responsibility for overseeing and advising NSW government agencies on compliance with the GIPA Act. The GIPA Act is the main legislative vehicle facilitating public access to government-held information in New South Wales, having replaced the Freedom of Information Act 1989 (NSW) on 1 July 2010.
The Government Information (Public Access) Act 2009 (NSW)
The object of the GIPA Act is to promote transparency and accountability in government decision-making by opening up access to government information to the public. In addition to providing a mechanism for information to be released via formal access applications, the GIPA Act also authorises and encourages the proactive public release of government information by agencies. The general presumption in the GIPA Act is that access to government information should be restricted only when there is an overriding public interest against disclosure.
Mandatory disclosure of information under the GIPA Act
The GIPA Act makes it mandatory for agencies to make certain information publicly available on their websites, and in any other way they choose, unless there is an overriding public interest against disclosure of the information. The rationale for the mandatory disclosure provision is that certain information about the way that government decisions are made is of such importance to the public that it should be made available proactively without people having to make a  formal request.

This type of information is known as ‘open access information’, and is set out in section 18 of the GIPA Act. That information includes:

(a)  the agency’s current agency information guide
(b)  information about the agency contained in any document tabled in Parliament by or on behalf of the agency, other than any document tabled by order of either House of Parliament
(c)  the agency’s policy documents 
(d)  the agency’s disclosure log of access applications 
(e)  the agency’s register of government contracts 
(f)  the agency’s record of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure,
(g)  such other government information as may be prescribed by the regulations as open access information.
Section 14 of the GIPA Act contains an exhaustive list of the public interest considerations against disclosure that agencies may have regard to when deciding whether or not to disclose information they hold. The fact that copyright exists in relation to a document is not in itself an overriding public interest against disclosure for the purposes of the GIPA Act, although section 6(6) of the Act states that agencies are not required or permitted to make open access information available in any way that would constitute an infringement of copyright.
Difficulties for local councils
Some of the open access information that agencies are required to disclose on their websites contains copyright material. This is particularly the case for local councils. Schedule 1 to the Government Information (Public Access) Regulation 2009 (NSW) (GIPA Regulation) lists a significant amount of information held by local councils that must be proactively disclosed on a website, such as information about development applications (DAs), including architectural plans and drawings, and engineering reports that would be expected to be protected by copyright. That information must also be made publicly available by providing a copy of a record containing the information (or providing the facilities for making a copy of a record containing the information) to any person either free of charge or for a charge not exceeding the reasonable cost of photocopying.  
 
Section 183 of the Copyright Act provides that copyright is not infringed by the Commonwealth or a State, or a person authorised in writing by the Commonwealth or a State, doing any acts that would otherwise breach copyright if the acts are done for the services of the Commonwealth or State. It is arguable that mandatory disclosure by State Government agencies under provisions of the GIPA Act would fall within section 183, being ‘acts done for the services of the State’. Commonwealth or State governments are required to pay a licence fee for use of the material to the copyright owner or a collecting agency, but do not have to ask permission. 

However, there is a problem where local councils hold and seek to copy or disclose copyright information under the GIPA Act. In advice provided to the IPC, the Crown Solicitor has expressed the opinion that councils are not the ‘State’ for the purposes of the Copyright Act, and so cannot avail themselves of the statutory licence provision in section 183 when copying or in other ways doing acts comprised in the copyright pursuant to their obligations under the GIPA Act.

Furthermore, the Crown Solicitor advised that local councils are unlikely to hold an implied licence permitting them to reproduce or communicate material that is covered by copyright. Nor, according to the Crown Solicitor, can councils rely on the fair dealing defences concerning research or study, or criticism or review, in sections 40 and 41 of the Copyright Act respectively. This is because, while research or study or criticism or review might be the goal of the member of the public seeking access to the information, councils would be reproducing or distributing the information for the purpose of complying with the GIPA Act, which falls outside the scope of the fair dealing defences.

This presents a problem since much of the information held by local councils is open access information and therefore must be disclosed under the GIPA Act. Consequently, councils will infringe copyright where, under section 6 of the GIPA Act, they make plans and reports submitted as part of a DA publicly available on their websites without the prior consent of the copyright holder. Councils will also infringe copyright where they make copies of plans and reports and provide them to members of the public in accordance with the GIPA Regulation.

This constraint undercuts the transparency and effectiveness of the GIPA Act by limiting councils’ ability to provide public access to documents that inform the basis of their decisions. It also presents practical difficulties for councils in terms of knowing what is covered by copyright and what is not, and how to provide access under the GIPA Act and Regulation while not infringing copyright. This is particularly difficult for councils where people ask for copies of plans to their own house prepared years before for a different owner, and permission to copy cannot be obtained because the architect cannot be contacted or may be dead.

We note that in relation to the assessment and planning phase of a DA, councils have an indemnity under clause 57 of the Environmental Planning and Assessment Regulation 2000 (NSW). Under that clause, a DA applicant (not being the copyright owner) is taken to have indemnified all persons using the development application and documents in accordance with the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) against any claim or action in respect of breach of copyright. Therefore, councils may copy and distribute any DA information in accordance with the EPA Act and not be liable for an action for breach of copyright. This indemnity applies only during the planning and assessment phase, and enables councils to copy and distribute information as required by the EPA Act. It does not apply to disclosure of information under the GIPA Act.
What the IPC has advised
The IPC has published two knowledge updates to assist local councils to navigate their way through the complexity created by the interaction of the Copyright Act and the GIPA Act with particular regard to information associated with development applications. We have advised that local councils:
•	should not publish any copyright material on websites, or provide any copies (including by email) under the GIPA Act, unless the copyright owner has expressly consented
•	consider asking for multiple copies of plans, copied with the consent of the copyright owner, to be submitted with DA applications (these plans could be distributed after the assessment period closes and the copyright indemnity in clause 57 no longer applies)
•	should continue to provide ‘view only’ access to DA plans, and
•	may provide photocopying facilities for the public to make copies of plans for the purpose of research and study (since the public may be able to rely on this defence even though councils cannot), with notices near the photocopiers alerting users to their copyright obligations. These notices do not provide indemnity, but may assist councils in the event any claim is made that they are authorising infringement of copyright. Councils should make sure staff understand they must not provide any copyright advice to members of the public, nor expressly permit them to copy plans.

We understand that the issue of reconciling copyright and compliance with the GIPA Act and Regulation continues to create practical difficulties for local councils in New South Wales. Some councils do not have photocopying facilities available to members of the public, or the storage space for multiple copies of material. It is inconvenient for members of the public to have to attend council offices to view plans and not be able to obtain copies, particularly when the plans relate to their own house.
Need for a workable solution
It would greatly assist local councils if they had some resolution to the uncertainty they currently experience. That resolution should ideally balance the legitimate interests of copyright holders in protecting their rights, with the public interest in providing public access to information on which government decisions that affect the community are based. 
The IPC does not have a specific view about the best way for this to occur. A possibility is to extend the statutory licence scheme in section 183 to cover local councils, although we acknowledge that this would involve a licence fee. Alternatively, perhaps the issue posed in Question 34 about allowing certain public uses of material deposited or registered in accordance with State law outside the operation of a statutory licence could be further explored.