The Development of Copyright - University of New South Wales v Moorhouse & Angus & Robertson (Publishers) (1975) CLR 1

I Photocopiers - a Threat to Copyright

During the 20th century, the invention of the photocopier radically improved the ease with which material could be copied and distributed. Photocopiers soon became an essential service provided by libraries for the use of those copying their own work, or those works available to them from the library catalogue. In relation to educational institutions in particular, 'the use of those machines may be regarded by some as a convenient - indeed almost indispensable - facility for the use of students and teachers, but by others as gravely damaging to the value of literary copyright.'[1] Users of these machines would often copy large amounts, often the entirety of works, unwittingly infringing copyright regulations and depriving the copyright owners of revenue from sales and licensing. Accordingly, photocopiers became the first target of the ACC, a newly established body seeking to enforce owners rights under the Copyright Act 1968 (Cth).

The Australian Copyright Council (ACC) was created on an interim basis in 1968. A non-profit organisation, the ACC aimed to help creators and other copyright owners to exercise their rights effectively and promoting changes to the law to maximise the fairness of copyright.[2] 

The ACC were successful in their campaigns to introduce provisions into the Copyright Act regulating the use of photocopiers to reproduce work protected by copyright.[3] Provisions were introduced to limit the ability of an individual to photocopy a text without the permission of the author, providing that, unless the copying was being done for the purposes of fair dealing and on a limited scale, the user had to obtain the permission of the copyright owner to make a copy of the work. However, it soon became clear from the very low number of requests for permission being made to copyright owners that the regulations were not being complied with. The ACC were thus faced with an issue of enforcement. Copyright was being infringed by hundreds of users on different photocopying machines across the nation, making it impossible to enforce the regulations on an  individual level. As a consequence, the ACC went in search of a much larger defendant in order to test the limits of the regulations established under the Copyright Act.

The photocopier had become an essential service of libraries throughout Australia. As the fundamental purpose of libraries was also to provide access to literary works protected by copyright, the ACC identified these institutions as a primary source of copyright infringement. Thus, libraries were targeted as an ideal defendant for a test case seeking to establish the rights of copyright owners in relation to photocopiers.

II Establishing a Case

The ACC requested the advice of J.R. Kerrigan, QC, who advised that 'state and university libraries which offer coin-operated photocopying services are infringing the Copyright Act many times a day.'[4] As the ACC's negotiations with universities regarding the payment of royalties for the use photocopied material had proven unsuccessful, the ACC decided to bring the test case before the court. The University of New South Wales (UNSW) was chosen as the defendant for the action, as the Vice-Chancellor of the UNSW, Rupert Myers, was proving 'particularly difficult' in the negotiations for payment of copyright royalties.[5]  Having acquired its defendant, the ACC now went in search of a plaintiff. The ACC approached author Frank Moorhouse and his publisher, Angus & Robertson, who both agreed to take part in the action.  Fortunately for the ACC, Counsel George Masterman QC, an ASA member, agreed to take the case on for free.

III The Hearing at First Instance

With all the pieces in place, the ACC arranged for journalist Paul Brennan, a UNSW graduate, to photocopy a story from Frank Moorhouse's book, The Americans, Baby, at the UNSW library. Using this infringing activity as its cause for action, the ACC initiated the Moorhouse case in the Supreme Court of New South Wales in May 1974.

At the first instance, the Supreme Court held that, in this particular case, the university had not authorised the breach. However, beyond the infringing activity orchestrated by the ACC, the court found that the university had authorised other breaches of copyright by allowing books to be photocopied on unspecified occasions. This was a success for the ACC. However, the UNSW appealed to the High Court.

IV The High Court Appeal

In August 1975, three High Court Judges allowed the university's appeal, saying that no proof of other breaches had been presented before the court. However, Counsel for the ACC had entered a last minute cross-appeal on the grounds that the earlier court case should have found that the university had authorised Paul Brennan's breach of copyright. The High Court upheld the cross-appeal too, holding that the UNSW had authorised the infringement of copyright.

Although the case was brought before the court with the intention of creating a clear and precise set of rules for those providing access to photocopiers, the judges considered the question of whether the library had authorised the infringement of copyright to be 'a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorized.'[6] Hence, the question of whether a person or organisation authorises the infringement of copyright depends on all the facts of the case, so that a decision on a particular set of circumstances may be of no assistance in other cases.[7]

In the Moorhouse case, the judges identified several factors that led to the conclusion that the UNSW had authorised the infringement of copyright.

Firstly, the court determined that the university was in a position to control both the use of the books and the use of the photocopy machines. Furthermore, the court found that the university should have been reasonably aware of the possibility that an individual may use the books and photocopy machines at their disposal to infringement copyright if adequate precautions were not taken.[8]

The UNSW argued that it had undertaken several measures intended to prevent the infringement of copyright by users of the photocopiers in its libraries, effectively discharging its obligation under the Copyright Act.

The university identified a library guide, provided to first year students in  1970-1973, which provided information on copyright regulations under the Act. The university argued that by making students aware of the copyright regulations, they had discharged their obligations. However, the court found that the guide, which simply referred library users to a copy of the Act, did not effectively convey to library users how to ensure that their actions did not amount to infringement.

The university further argued that the employment of attendants specifically for the supervision of the photocopy machines discharged their obligation. However, upon taking evidence as to the exact nature of the duties of the photocopier attendants, the court found that they were employed for the purpose of the general maintenance of the photocopiers, rather than supervision of their use.

The crucial element of the finding that the university libraries had authorised copyright infringement was the failure to place a notice detailing the requirements of the Copyright Act in the immediate vicinity of photocopiers. Although the UNSW had displayed notices, these were not adequate, as they set out the provisions of s49, regulating the use of photocopying by librarians, rather than for individuals. The court held that the notices were 'completely ineffective for the purpose for which they were apparently intended'.[9]

Therefore, the libraries of the University of New South Wales were found to have authorised the infringement of copyright, and that the unqualified supply of material provided in the libraries amounted to an invitation to copy.

V Post-Moorhouse Amendments

Section 39A of the Copyright Act, requiring a library to display the following notice close by the photocopying machine, effectively limits the liability of libraries arising from the Moorhouse case. By informing the users of photocopier machines of the regulations under the Copyright Act, the library does not authorise infringement, nor does it provide library users with an invitation to copy.

The reasoning of the Moorhouse case has also been codified in s36(1A) of the Copyright Act.[10] This section details the factors to be considered in deciding whether particular conduct amounts to authorisation:-

(a) the extent (if any) of the person's power to prevent the doing of the act concerned;

(b) the nature of the relationship existing between the person and the person who did the act concerned;

(c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

These criteria have been reasonably clear for establishing the obligations of libraries in relation to the provision of photocopying services. The display of the appropriate notices in the immediate vicinity of photocopiers discharges a libraries' obligations, ensuring that they do not authorise copyright or provide an invitation to copy.

However, as technology advances further, beyond the sphere of hardcopy works produced by photocopiers to digital material produced by computers, the action required by libraries to ensure that they do not authorise the infringement of copyright has also evolved.

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[1]  University of New South Wales -v- Moorhouse & Angus & Robertson (Publishers) Pty Ltd (1975) 133 CLR 1 per Gibbs J, 12.
 

[2] Peter Meredith, 'Realising the Vision: A History of Copyright Agency Limited 1974-2004', (Copyright Agency Limited, Sydney 2004), 9.
 

[3] Copyright Act 1968 (Cth) s21(1).
 

[4]  Ibid.
 

[5] Ibid, 11.
 

[6] per Bankes L.J. in Performing Right Society Ltd. v. Ciryl Theatrical Syndicate Ltd. (1924) 1 KB 1, at p 9, University of New South Wales -v- Moorhouse & Angus & Robertson (Publishers) Pty Ltd (1975) 133 CLR 1, per Jacobs J, 21.
                       

[7]  University of New South Wales -v- Moorhouse & Angus & Robertson (Publishers) Pty Ltd (1975) 133 CLR 1 per Gibbs J, 12.

[8] Ibid, 14.
 

[9] Ibid, 17.
 

[10] 1968 (Cth).