Copyright Agency Limited v State of New South Wales [2007] FCAFC 80 (5 June 2007)

No.	Plan number	Date of Registration
1	DP 1075540 (Pearson Plan)	22.11.2004
2	DP 1050003	09.05.2003
3	SP 69367	19.12.2002
4	DP 270416	20.01.2005
5	DP 270002	14.12.1990
6	DP 285915	17.03.2005
7	DP 1088034	22.09.2005
8	DP 1068768 (Oxley Plan)	08.07.2004

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

INTRODUCTION	2
THE QUESTIONS	3
THE STATUTORY AND REGULATORY FRAMEWORK FOR REGISTRATION OF SURVEY PLANS	6
The Old System	6
The Torrens System and the Real Property Act	7
Strata Titles	9
Community Plans	11
The Requirement for Registered Plans	12
Part 23 of the Conveyancing Act	13
SURVEYORS	18
DEALINGS BY THE STATE WITH SURVEY PLANS	20
Creation of Survey Plans	21
Lodgement, Examination, Amendment And Registration Of Survey Plans	23
The Pearson Plan	27
Document Imaging	28
The Digital Cadastral Database	30
Maintenance of the DCDB	32
The Accuracy of the DCDB	33
Upgrading the DCDB	33
Access to Scanned Images and Use of the DCDB	34
COPYRIGHT AND THE CROWN	37
Ownership of Copyright by the Crown	37
Use of Copyright by the Crown	39
QUESTIONS 1 AND 2: SECTION 176 OF THE COPYRIGHT ACT	41
QUESTIONS 3 AND 4: SECTION 177 OF THE COPYRIGHT ACT	43
QUESTIONS 5 AND 6: LICENCE OTHERWISE THAN UNDER SECTION 183	45
QUESTIONS 7, 8 AND 9: REPRODUCTION IN THE DCDB	47
QUESTIONS 10 AND 11: SECTION 51(xxxi) OF THE CONSTITUTION	49
CONCLUSION	49

2 Copyright Agency Limited (the Society) is a collecting society, for the purposes of the Copyright Act 1968 (Cth) (the Copyright Act), for each owner of copyright in works, other than a work included in a sound recording or a cinematograph film. The members of the Society include members of the Australian Consulting Surveyors Association (the Surveyors’ Association). The Federal Court has been requested by the Copyright Tribunal (the Tribunal) to determine certain questions of law concerning copyright in survey plans made by members of the Surveyors’ Association that are artistic works within the meaning of the Copyright Act.

3 Section 183(1) of the Copyright Act provides, relevantly, that the copyright in an artistic work is not infringed by a State doing any acts comprised in the copyright if the acts are done for the services of the State. Section 183(5) provides that, where an act comprised in a copyright is being done under s 183(1), the terms for the doing of the act are such terms as are agreed between the State and the owner of the copyright or, in default of agreement, as are fixed by the Tribunal. However, under s 183A(1), s 183(5) does not apply in relation to a government copy if a company is the relevant collecting society in relation to the copy.

4 Under s 183A(2), if s 183(5) does not apply to government copies made in a particular period for the services of a government, the government must pay the relevant collecting society in relation to those copies equitable remuneration worked out for that period. The remuneration is to be worked out using a method:

5 The Society has applied to the Tribunal for orders under s 183(5) and s 183A(2) of the Copyright Act in respect of dealings by the State of New South Wales (the State) with survey plans prepared by surveyors who are members of the Surveyors’ Association. The State is a respondent to the application to the Tribunal. While s 183(5) covers all acts comprised in the copyright in a work, s 183A(2) refers only to the making of copies. No other acts comprised in the copyright in a work are regulated by s 183A. Accordingly, the Society’s application to the Tribunal involves both the fixing, under s 183(5), of the terms for doing acts in the copyright, other than copying, and the determination, under s 183A(2), of equitable remuneration for making copies. Nothing turns on that distinction for the purposes of the matter before the Full Court.

6 The State says that copyright in the relevant survey plans is vested in the State by the operation of s 176 or s 177 of the Copyright Act. Alternatively, the State says that it is authorised to do the acts in the copyright that it does in relation to survey plans otherwise than pursuant to s 183. Accordingly, the State says, ss 183(5) or 183A(2) have no operation in relation to any acts done by the State in relation to survey plans of the kind in question.

7 The Tribunal embarked on the hearing of the Society’s application, received evidence, heard submissions from the Society and the State and made findings. The Society and the State then requested the Tribunal, pursuant to s 161(1) of the Copyright Act, to refer for determination by the Federal Court of Australia certain questions of law that have arisen in the course of the Tribunal’s consideration of the Society’s application. The Tribunal did so.

8 The questions of law referred for determination by the Federal Court are as follows:

No.	Plan number	Date of Registration
1	DP 1075540 (Pearson Plan)	22.11.2004
2	DP 1050003	09.05.2003
3	SP 69367	19.12.2002
4	DP 270416	20.01.2005
5	DP 270002	14.12.1990
6	DP 285915	17.03.2005
7	DP 1088034	22.09.2005
8	DP 1068768 (Oxley Plan)	08.07.2004

It is common ground that each of the Relevant Plans is an original artistic work made by the person whose name appears thereon as the registered surveyor, who was at all material times a qualified person within the meaning of that term in the Copyright Act in respect of works. In particular:

• DP 1068768 (the Oxley Plan) is an original artistic work made by Gregory Oxley, who is and was at all material times an Australian citizen.

• DP 1075540 (the Pearson Plan) is an original artistic work made by Jace Pearson, who is and was at all material times an Australian citizen.

9 It is necessary to explain the statutory and regulatory framework in accordance with which Survey Plans are registered and dealt with by the State. There are several regimes that are relevant and it is convenient to say something briefly about each of those regimes.

10 When the area of New South Wales was settled as a colony of the United Kingdom in 1788, all land in the colony was treated as land of the Crown. From the establishment of New South Wales, the Office of the Surveyor General documented land records and administered land in the colony. From 1825 Crown surveyors in the Crown Lands Office of the colony prepared plans known as "parish maps", which showed the area of the colony divided into Counties, Hundreds and Parishes. Parish maps were prepared with reference to surveys carried out by Crown surveyors. Each parish was subdivided into portions. The Crown granted fees simple or leaseholds to settlers in respect of portions of land shown in the parish maps. As land was alienated by the Crown, it was dealt with under the common law system of land holding of England (the Old System).

11 Under the Old System, landowners prepared their own documents for the transfer or the further subdivision of land. Provided that both parties were happy with the documents, a land transaction proceeded and land ownership was passed by the operation of the common law. Even if the parties used a surveyor to prepare a plan of the land being transferred, the plan did not need to comply with any governmental rules or regulations. Such plans were not required to be registered.

12 However, there was, and continues to be, a register of Old System dealings administered by the Registrar-General. The register contains records of transactions affecting land held under the Old System. Registered deeds evidencing such transactions date back to 1788. In about 1992, the Old System Register was computerised. Some land in New South Wales continues to be held under the Old System. Dealings in land held under the Old System are regulated in many respects by provisions of the Conveyancing Act 1919 (NSW) (the Conveyancing Act).

13 In 1863, a new system for regulating land ownership in New South Wales (the Torrens System) was established under the Real Property Act 1862 (NSW) (the 1862 Act). The 1862 Act commenced on 1 July 1863. All land alienated by the Crown since that time has been dealt with under the Torrens System. The Torrens System is based on statutory ownership and proper survey. Statutory ownership means that the State certifies title to land by reference to a proper survey of the land. The location of the land is proven by proper survey. The certainty of the Torrens System simplifies the process of conveyancing.

15 Under s 96B of the Real Property Act, the Register is to be a public record and information in it must be made available for inspection at the prescribed times, in the prescribed manner and upon payment of the prescribed fee, if any. Under s 115(1) the Registrar-General, upon payment of the prescribed fee, must furnish to any person applying for the same a certified copy of any registered instrument affecting land under the provisions of the Real Property Act.

16 The Register is to be comprised of folios, dealings registered in the Register under the Real Property Act or under any other Act and certain other records and instruments. Under s 32(1), the Registrar-General creates a folio of the Register by making a record of:

17 The record of the description of the land that must be made by the Registrar-General in the relevant folio of the Register, depends upon the existence of a proper survey identifying the land in question. That is apparent from succeeding provisions of the Real Property Act briefly described below.

18 Section 114 of the Real Property Act provides, relevantly, that, where a person is applying to have land brought under the provisions of the Real Property Act, the Registrar-General may refuse to accept lodgement of or may reject the application if the person has refused or neglected to comply with a requirement of the Registrar-General to lodge a plan of the relevant land or to obtain registration or recording of such a plan under Division 3 of Part 23 of the Conveyancing Act.

19 Section 37 of the Real Property Act provides that the Registrar-General may refuse to accept or refuse to register a dealing or instrument for registration in the Register and may reject a dealing or instrument lodged for registration if the dealing or instrument purports to give effect to a transaction that contravenes s 23F of the Conveyancing Act. The Registrar-General may also refuse to create a folio of the Register for any land if the land does not comprise one or more existing lots in a current plan within the meaning of the Conveyancing Act.

20 Part 4A of the Real Property Act deals with Qualified folios of the Register. Section 28C, which is in Part 4A, provides that the Registrar-General may refuse to register, pursuant to Division 3 of Part 23 of the Conveyancing Act, a plan of subdivision that includes land held under Old System unless there is lodged with the Registrar-General the title deeds whereby the land was conveyed to the subdivider or any mortgagee. Upon registration of such a plan, the Registrar-General may create a qualified folio of the Register.

21 Part 3 of the Real Property Act applies in general to land sold, leased, dedicated, reserved or otherwise disposed of or dealt with by or on behalf of the Crown under the Crown Lands Acts, being land in respect of which a grant has not issued and which is not under provisions of the Real Property Act. Part 4B of the Real Property Act deals with Limited folios of the Register. Section 28T, which is in Part 4B, provides that where the boundaries of land to which Part 3 applies are not sufficiently defined to enable the Registrar-General to create an ordinary folio of the Register under Part 3, the Registrar-General may create a limited folio.

22 Strata titles are a refinement of the Torrens System. The Strata Schemes (Freehold Development) Act 1973 (NSW) (the Strata Freehold Act) facilitates the subdivision of land into cubic spaces and the disposition of titles to such spaces. Under s 5(1) of the Strata Freehold Act, the term lot means one or more cubic spaces forming part of the parcel to which a strata scheme relates. A strata scheme is defined as the manner of division under the Strata Freehold Act of a parcel into lots or into lots and common property, the manner of the allocation of unit entitlements among the lots and the rights and obligations, between themselves, of proprietors, other persons having propriety interests in or occupying the lots and the body corporate, as conferred or imposed by the Strata Freehold Act.

23 The base of each cubic space is designated as one lot, or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision, or a strata plan of consolidation or building alteration plan to which the relevant strata scheme relates. The base of the vertical boundaries of the cubic space is as delineated on a sheet of the floor plan of the strata plan, strata plan of subdivision, strata plan of consolidation or building alteration plan as the case may be. Provision is made in the Strata Freehold Act for the ascertainment of the horizontal boundaries. However, a lot does not, in the ordinary course, include any structural cubic space.

24 Section 7(2) of the Strata Freehold Act provides that land under the Torrens System held in fee simple, including the whole of a building, may be subdivided into lots or lots, and common property, by the registration of a plan as a strata plan. Section 8 provides that a plan intended to be registered as a strata plan must include:

The Registrar-General may refuse to register a plan as a strata plan if a formal land survey plan of the proposed parcel requested by the Registrar-General has not been lodged in the office of the Registrar-General, under s 6(a).

25 Section 9 of the Strata Freehold Act provides that lots and common property may be subdivided by the registration, as a strata plan of subdivision, of a plan that complies with s 9(3). Under s 10, a plan illustrating a proposed subdivision altering the boundaries of one or more lots so as to create two or more different lots must not be registered unless it is accompanied by a schedule showing the proposed unit entitlement of each lot comprised in the parcel other than the lot or lots the subject of the proposed subdivision and each proposed lot. A plan illustrating a proposed subdivision must not be registered as a strata plan of subdivision unless it is accompanied by similar details of the proposed unit entitlement.

26 Under s 16 of the Strata Freehold Act, the Registrar-General must not register as a strata plan, a strata plan of subdivision, a strata plan of consolidation or a building alteration plan unless the plan has been signed by the registered proprietor of the land comprised in the plan and every mortgagee, chargee under a mortgage, charge or covenant charge, recorded in the folio of the Register kept under the Real Property Act relating to the land. Thus, any person who has a legal estate in land that is the subject of the plan must consent to the registration of the plan. That has consequences in the present context in relation to the question of first publication of such a plan in so far as it is an artistic work.

27 Under s 41 of the Strata Freehold Act, the Registrar-General may, subject to the Act, register a plan or other instrument under the Act. A plan is registered as a strata plan, strata plan of subdivision, strata plan of consolidation or building alternation plan when the Registrar-General makes on the plan, in the Register, or in another record maintained by him, such recordings with respect to the plan as he considers appropriate. A plan must not be registered as a strata plan, a strata plan of subdivision, a strata plan of consolidation or building alteration plan unless such other plans and documents, if any, as may be prescribed, have been lodged with the plan. Under s 42, the provisions of ss 195F and 195J of the Conveyancing Act, which are contained in Division 3 of Part 23, apply to and in respect of a plan lodged for registration as a strata plan, strata plan of subdivision, strata plan of consolidation or building alteration plan.

28 The Strata Schemes (Freehold Development) Regulation 2002 (NSW) (the Strata Freehold Regulation) prescribes other requirements for the preparation of strata plans, strata plans of subdivision, strata plans of consolidation and building alteration plans. Generally, the requirements correspond with the requirements of Schedules 5 and 6 to the Conveyancing Regulation.

29 The Strata Schemes (Leasehold Development) Act 1986 (NSW) (the Strata Leasehold Act) provides for leasehold strata schemes. The purpose of the Act is to allow land to be subdivided by means of a strata scheme in cases where the owner of the land does not wish, or is not able, to part with ownership of the land. Under a leasehold strata scheme, the owner of the land that is the subject of the scheme retains an estate in fee simple in the land. The purchaser of each lot that is created under the subdivision obtains a leasehold interest, rather than a freehold interest, in the lot. While the scheme of subdivision provided for by the Strata Leasehold Act is an alternative to that provided for by the Strata Freehold Act, most of the provisions governing the two types of schemes are the same.

30 The Community Land Development Act 1989 (NSW) (the Community Land Act) facilitates the subdivision of land into parcels for separate development or disposition:

Section 5 of the Community Land Act provides for the registration of community plans. Under s 5(3)(a), the Registrar-General may refuse to register a community plan unless it complies with certain requirements specified by the Community Land Act, including a requirement that the lots in a plan must be defined by a plan of survey.

31 Each of the land holding regimes briefly described above depends upon the existence of accurate plans describing land that is the subject of a holding. Reference has already been made to s 37 and s 114 of the Real Property Act and s 41 of the Strata Freehold Act requiring registration of survey plans in accordance with s 23F and Division 3 of Part 23 of the Conveyancing Act. Under s 23F of the Conveyancing Act, the Registrar-General may refuse to register certain transactions if:

The transactions in question are any conveyance or transfer of an existing lot, any lease of an existing lot, any mortgage of an existing lot or the partition of an existing lot.

32 Under s 7A of the Conveyancing Act, a current plan is relevantly a registered plan. The term registered plan is defined in s 7(1) as follows:

33 Section 195 provides that a plan of subdivision means, relevantly, a plan that shows:

Under s 7(1), an existing lot is a lot whose boundaries are shown in a current plan or, in relation to land that is not included in a current plan, any distinct lot or portion of land whose current boundaries are identified in documents that evidence current legal interests in the land.

34 Thus, the effect of s 23F is that land in New South Wales may not be subdivided so as to permit the transfer of a legal estate in a lot or parcel in the subdivision, unless a plan has been registered in accordance with Division 3 of Part 23 of the Conveyancing Act. Part 23 is generally concerned with registration. Division 3, which consists of ss 195 to 196AB inclusive, deals with the registration of plans.

35 Section 195A provides that, where a plan of the subdivision of land is required by law to be registered, the plan must be lodged in the office of the Registrar-General for registration under Division 23. Section 195C(1) provides that a plan lodged under Division 23 must:

36 Subdivision Certificate is defined as a subdivision certificate issued under Part 4A of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). Under s 109C(1) of the EPA Act, one of the certificates that may be issued for the purpose of Part 4A is a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act.

37 Under the EPA Act, subdivision of land is an activity that requires the approval of the local municipal council in whose area the land is situated. Thus, one effect of s 195C(1) is that a plan of subdivision may not be registered by the Registrar-General unless the local council has approved the proposed subdivision. That has consequences in the present context in relation to the question of first publication of an artistic work that consists of a Survey Plan.

38 Section 195D(1) of the Conveyancing Act relevantly provides that the Registrar-General must not register or record a plan lodged under Division 3 unless the plan is signed:

Thus, before a plan of subdivision can be registered, any person who has a legal interest in the land must sign it. That has consequences in the present context, in relation to the question of first publication of an artistic work that consists of a Survey Plan.

39 Section 195F provides that the Registrar-General must not register and may reject a plan lodged under Division 3, if not satisfied that the plan is in registrable form. A plan is not in registrable form if it does not comply with a requirement made with respect to the plan by or under the Conveyancing Act or under any other Act. Section 195G(1) provides that, where the Registrar-General is satisfied that a plan lodged under s 195A is in registrable form, the Registrar-General must register the plan by affixing the Registrar-General’s seal to the plan or otherwise making a record of that seal with respect to the plan. Where the land in the plan is under the provisions of the Real Property Act, the Registrar-General may create such folios of the Register as are appropriate.

40 Section 195I provides that a conveyance of land comprised in a plan registered or recorded under Division 3 may be effected by reference to that plan. Under s 195J, the validity of a plan that has been registered under Division 3, or any instrument intended to affect or evidence the title to any land to which such a plan relates, may not be called into question in any proceeding before a court or tribunal on any ground whatever.

41 Under s 198(1) of the Conveyancing Act, the Registrar-General is required to keep an index of the registers kept under the Conveyancing Act. The Registrar-General may, on payment of the prescribed fee, provide a copy, or permit the inspection, of the whole or a part of the index. Clearly, those provisions extend to plans registered under Part 3 of Division 23.

42 Section 202(1) of the Conveyancing Act provides that regulations may be made prescribing the manner and form of registering instruments under the Conveyancing Act and the requirements with which documents lodged or delivered for registration must comply. Under s 202(2) the term "prescribed" in the Conveyancing Act in relation to such a matter means prescribed under the provisions of s 202.

45 Part 3 of the Conveyancing Regulation dealing with the Register of Plans, provides detailed and specific requirements with which plans must comply. Under r 17, the following matters must be shown in the relevant spaces of the information panels of a deposited plan:

46 A plan lodged by hand for registration as a deposited plan must comply with the requirements set out in Schedule 5 to the Regulation. Where the Registrar-General permits a plan to be lodged electronically for registration as a deposited plan, the plan must comply with the requirements set out in Schedule 6. Schedules 5 and 6 are substantially identical save for provisions that are peculiar to plans lodged by hand or electronically as the case may be. Relevantly, the following detailed and specific requirements are laid down:

47 The range of activities performed by surveyors is extensive. However, only a small part of those activities involves the preparation of plans that are to become Registered Plans. Surveyors produce many types of maps, plans and reports for the use of their clients. Surveyors are typically commissioned to carry out an initial site survey and then plan, design and manage the construction of residential land estates and other infrastructure projects, such as bridges, roads, pipelines, and buildings. Clients of surveyors include builders and developers and large government and private sector entities. On completion of a project, a surveyor will undertake a survey of the completed project to prepare, for instance, plans of subdivision to lodge with LPI for creation of new parcels of land or strata parcels.

48 Up until 1837, surveyors were employed by the Crown to create surveys of Crown land, allowing it to be sold, leased and subdivided by the Crown. There was little demand for surveyors to create surveys for private subdivision. In April 1837, the licensing of surveyors began in New South Wales, allowing persons to become surveyors for the private subdivision of land. Many Crown surveyors obtained such a licence, enabling them to undertake private subdivisions. Surveyors who wanted to create and lodge Survey Plans under the 1862 Act were required to obtain licences from the Surveyor General.

49 The Surveyors Act 1929 (NSW) (the 1929 Surveyors Act) regulated the process by which surveyors created Survey Plans in respect of Torrens System land. The 1929 Surveyors Act provided that only registered surveyors were permitted to prepare ‘cadastral survey plans’ for inclusion in the Register kept in respect of the Torrens System. This effectively gave a small group of people a monopoly over the preparation of Survey Plans upon which the Torrens System was based. The 1929 Surveyors Act was repealed by the Surveying Act.

50 Under the Surveying Act, a registered land surveyor is a person who is registered as a land surveyor under that Act. Under s 10, the Board of Surveying and Spatial Information constituted under s 27 of the Surveying Act (the Board) may grant registration as a land surveyor. Under s 18, a land surveyor may enter any land, including any building or structure on which a survey mark is located, may take measurements in or from any such land, may search for and, if necessary, may uncover any existing survey marks in or on any such land and may insert new survey marks for the purpose of carrying out any land survey. A land survey means a survey that is carried out in connection with any of the following:

Section 21 provides that a person must not carry out a land survey for fee or reward, or advertise that he or she is willing to carry out a land survey for fee or reward, unless that person is a registered land surveyor.

51 The term survey, when used as a noun, is defined in the Surveying Act as an activity that includes:

A survey mark is a mark that is in the form or style declared by the Surveying Regulation 2006 (NSW) (the Surveying Regulations) to be the form or style for a survey mark under the Surveying Act. A survey plan is a plan to illustrate the results of measurements or the location of survey marks.

52 Section 36 of the Surveying Act provides that regulations may be made that make provision for or with respect to the practices to be followed in the conduct of surveys and the form in which Survey Plans are to be prepared. The Surveying Regulation has been made pursuant to that provision.

53 The Surveying Regulations lay down specific and detailed requirements for survey practice including:

54 The Department of Lands of the State was first set up under the office of the Surveyor General. The Department presently consists of the following divisions:

55 The head of LPI is the Director General, who is also Surveyor General and Registrar-General. The Director General reports to the Minister for Lands of the State. LPI provides land administration services to the State, including titles and registration of plans, which underpin the Torrens System. LPI maintains registers that reflect any changes in ownership and land boundaries.

56 One of the objects of LPI is to satisfy the rigorous legislative requirements for the purposes of defining of boundaries of land parcels in New South Wales. To that end, LPI engages examining and investigating surveyors, who audit and verify, where necessary, documents that form part of the registers maintained by LPI.

58 Survey Plans relate the position of the subject land to survey marks on the surface of the Earth, by indicating, on the plan, bearings and distances from identified survey marks that define the land. To that extent, a Survey Plan is directly linked to a physical parcel of land. Once registered, DPs and SPs create the legal delimitation of the land comprised in titles. That is, they create the legal identity of land, being lot and plan number, expressed usually as a "folio identifier". DPs and SPs must be created and registered whenever land is subdivided and new land parcels are created, or when any dealings affecting the land are created (including encumbrances such as mortgages, easements or leases).

59 Survey Plans must only include information that is relevant to the definition of boundaries, creation of title and any interests affecting that title. In creating Survey Plans, surveyors must follow the legislative requirements that govern the preparation of Survey Plans. Surveyors use a standard checklist provided by LPI, which helps ensure that a Survey Plan is compliant and fit for registration. The checklist is completed and signed by the surveyor who prepares a Survey Plan.

60 To create a Survey Plan, a surveyor will first obtain copies of all of the relevant existing Survey Plans, for instance, those of surrounding parcels, required to create an accurate survey plan that "fits in" with the surrounding survey marks. A surveyor may attend LPI personally and search the charting maps to identify the relevant plans and order a copy of the plans. Alternatively, and most commonly, the surveyor may ask a commercial searching agent to conduct the necessary search of the charting maps at LPI and order copies of the relevant plans.

61 Once the survey information is at hand, the registered surveyor will research the plans and information obtained to determine how the original boundaries were determined and trace the surveys made on or near the subject land; the original surveys help to determine which marks will assist in redefining the original boundaries. Once the registered surveyor has this information and has used it to create a strategy to locate the marks noted on the plans that are on public record, the surveyor is ready to go to the land itself and commence what is colloquially known as field work.

62 The surveyor will first locate the existing survey marks. The surveyor will measure and draw up a surveyor’s sketch plan of the site and will determine the location of the new boundary marks in accordance with the existing marks, using precedents, practices and procedures that comply with relevant legislation. The surveyor will then mark on the ground the location of the boundaries and will place the necessary marks. Such marks can include boundary marks, reference marks and permanent marks. The Surveying regulations prescribe all such marks.

63 Once the comparisons are made between the marks and information, as found on undertaking the survey, and the marks as placed by the previous survey, an opinion is formed by the registered surveyor as to where the boundary is and should be marked. Once the marks are placed to define the existing or new boundaries as a result of the field work, research and calculations, the surveyor will then be in a position to prepare a Survey Plan for lodgement at LPI. Such a plan is prepared on a prescribed form using line work and lettering as set out in the Conveyancing Regulation. The plan is then provided to the surveyor’s client to obtain the necessary signatures and approvals.

64 Surveyors are restricted as to the content of Survey Plans. For instance, if additional information, which is not relevant to the definition or creation of the title of the relevant land, is set out in a proposed plan, or insufficient information is included to define the land accurately, the Survey Plan will be requisitioned by LPI and the surveyor will be required to amend the Survey Plan so that it complies with the legislative requirements before it can be registered. Approximately 40% of Survey Plans lodged are requisitioned for a variety of reasons.

65 For most Survey Plans, there is only one way of representing the division of a parcel of land. This means that if land is to be subdivided in a certain manner, the content and layout of the Survey Plan that accomplishes that division will inevitably be drafted in a prescribed way. If a surveyor repeats the work of a previous surveyor, the later surveyor should arrive at the same end result as the earlier surveyor and produce a Survey Plan that is of the same dimensions.

66 The plan lodgement and registration system has not changed substantially over time. Since the establishment of the Torrens System Survey Plans have always been lodged in the Land Titles Office, the former name of LPI, and now LPI. Initially, Survey Plans were lodged over the counter. Since about 2002, Survey Plans have also been lodged electronically. A Survey Plan that is lodged electronically is examined in the same way as if it were lodged over-the-counter: a print-out of the Survey Plan lodged electronically is used as the working copy. Fees charged for the registration of Survey Plans are prescribed by regulation.

67 A Survey Plan, after lodgement, undergoes a preliminary check by the counter staff to ensure that it is signed and that the correct supporting documents have been provided, including:

(a) the original Survey Plan, complete with the necessary signatures and subdivision certificates;

(d) a surveyor’s checklist: a lodging party who does not produce the checklist at the time of lodgement is told that the checklist will be requisitioned in due course;

68 Each Survey Plan’s administrative details are recorded electronically on the Integrated Titling System (ITS) by the counter staff. This includes the surveyor’s name, number of lots, the purpose for creating the Survey Plan, the lodging party’s name and other information. The counter staff also use ITS to record the Survey Plan as an unrecorded dealing on the computer, showing the titles affected. A new DP or SP number is allocated and affixed by a sticker onto the original Survey Plan and the copies of it. A packet is created under the new DP number or SP number and all of the documents are placed in the packet, together with a plan lodgement form, which is partly completed by the lodging party.

69 The original Survey Plan is suspended in a plan press, where it is kept until it is ready for a final check, charting and registration. In the meantime, a working copy of the Survey Plan, along with the checklist and certificate of title, is sent to a plan assembler.

(a) photocopies of the relevant charting maps obtained from the Cadastral Reference Directory (CRD) and from the Central Mapping Authority (CMA);

(b) copies of all other Survey Plans shown in the surveyor’s panel on the new Survey Plan. The panel is set out on the bottom right hand corner and contains the DP numbers of the plans used by the surveyor to create the new Survey Plan; and

Those documents are then added to the packet. The plan assembler also checks the charting of the new Survey Plan to ensure that the new DP number or SP number is on all of the affected titles, described as an unregistered dealing. The plan assembler sends the packet to the plan examination supervisor for allocation to a plan examiner.

71 The plan examiner is a skilled officer, trained in survey examination and in title matters. The plan examiner reviews the new Survey Plan to ensure that it complies with legislative requirements and that the boundaries are accurately defined. The plan examiner checks that the legal boundaries correspond with the boundaries marked on the ground and that the new Survey Plan fits in with existing Survey Plans registered at LPI, thus ensuring that the correct boundary definitions are maintained. The plan examiner reviews the surveyor’s checklist and ensures that all of the necessary steps have been followed, including the proper signing of the Survey Plan. The plan examiner also checks the copies of the maps included in the packet to ensure that all of the plans necessary to the drawing up of the new Survey Plan have been referred to.

72 The plan examiner marks the working copy of the Survey Plan with colour-coded features. For example, certain types of survey marks are marked in yellow to indicate that the mark was placed in a previous plan and is being used to define the boundaries. If the plan examiner does not agree with the location of a feature on the Survey Plan in relation to a survey mark, the plan examiner may mark that survey mark in orange.

73 The plan examination process takes about 2 to 3 days, depending on the complexity of the new Survey Plan. The plan examiner spends about one third of his or her time examining boundaries and survey information contained in the Survey Plan and about two thirds of his or her time considering issues relating to title and ownership relevant to the Survey Plan. Many issues may arise that need to be dealt with by the examiner, for instance, the need to consider which easements and what restrictions on use will be carried forward into each new title. Another possible issue is the need to ensure that the person lodging the Survey Plan is the owner of the land that is the subject of the Survey Plan. For this to happen, it may be that a transfer or request to change the ownership of the relevant land must be examined and registered along with the Survey Plan. The Survey Plan must be checked to ensure that all of the persons required to sign it, including the owner and any mortgagees, have done so.

74 If the Survey Plan is not compliant and the plan examiner has determined exactly how the Survey Plan must be amended to be registered, the plan examiner issues requisitions to the surveyor and/or lodging party, setting out the problem areas that need to be addressed before the Survey Plan can be registered.

75 If the Survey Plan is not compliant and the plan examiner has not been able to make an exact determination on how it needs to be amended, the Survey Plan is sent to an LPI investigating surveyor, who determines what needs to be done so that the Survey Plan fits into the existing survey framework. Investigating surveyors have expertise in dealing with especially complex Survey Plans. Once it has been determined what amendments are required, requisitions are issued to the surveyor and/or lodging party setting out what needs to be addressed so that the Survey Plan is suitable for registration.

76 If the Survey Plan, after examination, is found to be correct according to the legislative requirements or the requisitions have been successfully addressed and the Survey Plan has been amended, it is registered. On and subsequent to registration, the following steps occur:

(b) The plan examiner registers the Survey Plan, by affixing the Registrar-General’s seal, and issues the title;

(c) The electronic plan records held on the Document and Integrated Imaging Management System (DIIMS) are updated to reflect registration and the survey plan is "charted", meaning that it is added to the LPI’s charting maps, along with the relevant information such as the DP or SP number and an indication of the new subdivisional lines;

(d) The registered original Survey Plan is scanned into DIIMS, from where it may be accessed by the public and government authorities;

(e) Copies of the Survey Plan are sent to the relevant council and authorities (that is, water and telephone) as required by relevant statutory instruments; and

77 The registration of a new Survey Plan may sometimes be delayed until dealings such as transfers are lodged for registration or until the draft writer drafts the text of the new title to be issued upon registration of the Survey Plan.

78 The Pearson Plan, DP1075540, is an example of the detail of the work carried out by LPI in connection with registration of a DP. The purpose of the Pearson Plan was to effect a subdivision of lot 7 of section 2 in DP5714, being land in Walpole Street, Holroyd, in the Municipality of Merrylands. Set out in Schedule 1 is a copy of the working copy of DP1075540 created by LPI. The relevant plan examiner made each of the markings, including the colours. The working copy indicates that the plan examiner had determined that there were several existing survey marks within the area as indicated by the yellow marking. The blue colour indicates new survey information that had been determined by the surveyor, as well as survey marks placed. As a result of examination, the plan examiner found that the plan was substantially correct as regards boundary definition. However, the surveyor needed to add further information to the plan to assist in the definition of the easements and also to satisfy the legislative requirements of the Surveying Regulation.

79 On 5 November 2004 requisitions were sent by LPI to the lodging party and to the surveyor who prepared the plan. The requisitions specified the alterations required. The surveyor amended the plan as required by the requisitions and returned it under cover of a letter of 11 November 2004. Set out in Schedule 2 is a copy of DP1075540 as amended, stamped and registered at LPI on 22 November 2004.

80 In order to create the new boundaries to define lots 1 and 2 in the Pearson Plan, the surveyor had to define the original parcel of land from which the allotments are created. Accordingly, he needed to do some research into the Registered Plans surrounding that parcel in order to locate sufficient survey marks, permanent marks, reference marks and occupations to establish the portion boundaries between the streets, working from the whole to the particular.

81 Research was required in the field in order to define the alignments of Monitor Road, Windsor Road and Alfred Street, as well as the alignment of Walpole Street and Birmingham Street, so that the rectangle between Alfred Street, Windsor Street, Birmingham Street and Walpole Street could be determined. The dimensions between those intersections were then compared with the original Registered Plan or the underlying Registered Plans. If there was an excess or a shortage, it was distributed equally. Working backwards, the surveyor then determined the external boundaries of lot 7 in section 2 DP5714. Once that was defined, he was able to undertake the survey to create the two new allotments.

82 In preparing the detail of the subdivision into lots 1 and 2, there were negotiations with the client or the person who owns the land and the surveyor discussed with that person where he or she wanted the boundary. The boundary, consisting of the centre of the party wall, is a fixed boundary, but the boundary from Walpole Road to the northern face of the dwelling could vary, as could the common boundary to the rear of the brick wall. A new fence was erected, so they determined to make the boundary the new fence.

83 On the Walpole Street side, the boundary is not straight down the line of the brick wall. That was to cater for egress into the property off the road. There is a right of carriage way easement created in the triangular section of D. An easement has been created over lot 1 in favour of lot 2 and in lot 2 in favour of lot 1, so that when a vehicle turns into lot 1 it may need to encroach upon part of lot 2 and vice versa.

84 There is an easement to drain water created, with lot 1 to drain into lot 2 throughout, into Walpole Street, which would suggest that the north-eastern corner of lot 2 would be the lowest point and, therefore, the water would drain to that point, so there is probably a pipe in the ground which would drain roof water from lot 2 through that easement out into Walpole Street. Diagram C on the Pearson Plan caters for some eaves or gutters that overhang, so it would appear that the boundary goes through the centre of the wall, out to the road, and there is probably an eave that overhangs the wall because the front of the building of lot 2 is more northerly than the building on lot 1. Diagram B shows the dimensions and how the surveyor would define where that easement is located on the property and it also relates the easement to the property boundaries.

85 Every time a Survey Plan is registered at LPI, it is imaged electronically by the Image Capture Section of the Property Information Services Branch of LPI, and is entered into DIIMS. Images stored on DIIMS are derived from the documents that are lodged, examined, amended and registered at LPI in Sydney, and recorded in the ITS. The ITS, DIIMS and the plan room, where the hard copies of Survey Plans are kept, constitute a part of the register that is required to be kept by the Registrar-General under s 31B of the Real Property Act and s 195G of the Conveyancing Act.

86 Each Survey Plan is inspected to ensure that it is of a quality that will allow scanning. Scanners are then used to scan the Survey Plan into DIIMS. The scanners are adjusted so that each Survey Plan is effectively scanned. This is necessary because Survey Plans are prepared using different CAD software, which often produces a slightly different image. In order to allow the Survey Plan to be scanned effectively, the settings on the scanners are adjusted to take into account the different resolutions, as well as the lightness or darkness of the original document.

87 There is no manipulation of the Survey Plan in the imaging process, with two small exceptions. First, the scanning operator occasionally varies the settings on the machine to increase or decrease the contrast or lightness and darkness of the image. Secondly, the signatures appearing on a plan are sometimes photocopied and made darker so that they may then be scanned more effectively. In some cases, a copy is first made of the signatures appearing on a Survey Plan so that the copy is more easily read by the scanner.

88 The Image Capture Section uses a Xerox scanner to create a bit-map image of the Survey Plan. This means that each small area of the survey plan is converted into digital information comprised of zeros and ones. This is not an optical character recognition process. An exact image of the whole Survey Plan is recorded in a digital format.

89 After scanning, the imaged documents are stored as individual TIFF files on magnetic hard disk drives and are archived to magnetic optical disks which are stored off-site for business continuity purposes. Software programs allow the Survey Plan to be accessed and displayed, using a unique key, being the plan number allocated by LPI staff in the lodgement process. DIIMS stores all of the scanned images, in a format whereby the image can be delivered in either paper or electronic format to LPI staff, Government agencies and members of the public.

90 The DCDB is an essential element in the State’s current land based taxation system and in infrastructure planning and maintenance. Government, local government and commercial entities can access vector data by a licence so that they are able to use it in ways such as printing it out or accessing it on the computer. Organisations that have access to the DCDB include LPI Bathurst, Telstra, local councils, the Mine Subsidence Board, Sydney Water, Hunter Water, Mid Coast Water, Riverina Water, the Australian Bureau of Statistics and Integral Energy.

91 The DCDB was created to provide an index of land in New South Wales for the State Land Information Council and as a mapping tool for the CMA. The DCDB forms the fundamental graphical dataset of the system and was compiled using CMA maps and information from a number of sources. Specifically, digital data made available by Metropolitan Water Sewerage and Drainage Board (now Sydney Water Corporation), Hunter District Water Board (now Hunter Water Board) and Shoalhaven City Council was used for the fundamental graphical data set for the DCDB. In addition, map sheets of the Western Lands Commission (WLC) were used as the basis for updating and subsequent conversion.

92 The DCDB is administered and maintained by LPI at Bathurst. The DCDB is a database that consists of parcels of land identified as having a current title in the ITS or other Departmental databases, and other information accessed from parish maps and Government Gazettes and contains reference information to base cadastral parcels, cadastral road parcels, cadastral river parcels and cadastral administrative boundaries. DCDB does not contain any legal title documents, only data derived from legal title documents.

93 The DCDB contains up to 14 layers of data, depending on the occurrence of various features within any specified area. The layers are:

94 The cadastral base parcel layer of the State is defined by lines, which represent the parcel boundaries and which form graphical enclosing polygons. Those polygons are a graphical representation of the cadastral parcels. The cadastral parcels, in turn, are a graphical representation of the current land boundaries in New South Wales.

95 The spatial data are the points, lines and polygons that form the fabric of the DCDB. The attribute data comprise information about a polygon, such as its deposited plan number, its lot number or any other element. Attribute data are usually attached to a point within a polygon. Spatial data and/or attribute data can be derived from the DCDB. Accordingly, information derived from the DCDB can be a graphical representation of a series of lots, or the line work can be extracted together with lot numbers.

96 Only the Base Parcel Layer and the Easement Layer are affected by the registration of DPs. SPs do not affect any layer.

97 The initial population of the DCDB was completed in 1994. Since then, the entire DCDB has been under a maintenance program. The information and sources used in the maintenance of the DCDB are as follows:

(f) Government Gazettes for some layer information, for instance for suburb boundaries, national parks and State forests;

(h) Administrative boundary information sourced from LPI Bathurst, National Park and Wildlife Service, and State Forests.

98 The maintenance of the DCDB relies upon inserting information derived from the above sources, in the manner set out below. 65% to 75% of DCDB update maintenance is derived from DPs.

99 Relevant imaged copies of all Survey Plans registered are sent electronically from LPI Sydney to LPI Bathurst on a daily basis. They are then accessed by officers at LPI Bathurst and the Survey Plans are printed for potential use in the update process. Staff at LPI Bathurst access these data sources from other agencies on a daily basis for incorporation into the DCDB.

100 The DCDB is updated at LPI Bathurst by technicians known as Spatial Information Officers, who work from the daily printouts batched from Sydney. The DCDB is updated no less frequently than annually. A new release of the DCDB is available to users and customers at least that frequently.

101 The DCDB is a representation of the cadastre of New South Wales. It is not a survey accurate database. The accuracy of the DCDB depends on the original source information, what it was and how it was entered. It is as accurate as possible, considering the limitations of technology and raw materials.

102 The raw materials that were used in its creation, such as large scale maps of various types and aerial photographs, were not always survey accurate. The initial base data varied between data captured from hard copy maps prepared by LPI and other Crown agencies and digital data captured by other organisations and supplied to LPI Bathurst.

103 The degree of deviation from survey accuracy in the DCDB varies depending on what part of New South Wales is being dealt with and where there might have been raw material of different degrees of accuracy. In a number of densely populated urban areas, the degree of accuracy might be higher than in less densely populated rural areas.

104 When new information is added by referencing dimensions on Survey Plans, the information is manipulated to fit the base parcel layer created through the initial DCDB capture. Even when data from a current DP, which might be survey accurate, is entered into the jigsaw of the DCDB, the result in the DCDB might not be survey accurate because it is adjusted by the computer to fit into its place in the existing DCDB. When fitting a Survey Plan into the DCDB, the extent, if any, to which the length of the line changes depends on the accuracy of that part of the DCDB that is being updated.

105 Upgrading of the DCDB is undertaken by LPI Bathurst. Upgrading involves improving the spatial accuracy of the DCDB, as distinct from its currency. Areas of poor accuracy are generally identified by users and then scheduled for upgrade. The staff who undertake upgrade activities are part of the group within the cadastral maintenance area of LPI Bathurst, which undertakes maintenance of parcel and layered data on a daily basis as described above. Upgrading the DCDB is done by a combination of physical survey work done by officers of LPI and by use of other sources of data from the agency that has requested the update, for example local government who will provide their own survey information. LPI also uses DPs.

106 From time to time, an operator may find a detail that needs checking with another DP or SP. The operator at LPI Bathurst can call up imaged plans registered at an earlier time at LPI Sydney, using Webgov over the Intranet. LPI Sydney then emails the requested plan to LPI Bathurst as an imaged file. The LPI Bathurst operator can then determine whether to read the plan on screen or print it out. Such plans are used to verify and correct the DCDB and are also referred to when entering new details if, in doing so, the operator finds that the details do not fit.

107 When the operator at LPI Bathurst receives the earlier registered plan, the details, such as boundaries, are cross-checked. That may result in the need to amend the earlier plan. If that is the case, the operator sends back a hard copy of the earlier plan, with corrections, to the Crown Surveyor, who in turn sends the earlier plan to the surveyor who drew it. That surveyor must correct the plan and send it back to LPI Sydney as an ‘enhanced’ plan. Such a plan has ‘E’ noted on it as part of its registration. Such an amendment is often undertaken by hand. Typical amendments are usually typographical errors, or bearings that are incorrect. Sometimes, the amendments are more significant.

108 If, during the update process when the operator inputs bearings and distances information from the relevant survey plan, the plan does not ‘close’, it is referred to the surveyors at LPI Bathurst, who then refer the plan to LPI Sydney for follow up action.

109 The Application Program Interface (API) is a set of programs that allows the electronic images stored on DIIMS, and other electronic products, to be accessed by users, including LPI staff, government bodies, information brokers, and members of the public. The API recognises requests received electronically from users, sorts those requests and allows the requests to be made to the appropriate database and the search results to be provided to the user.

110 Upon registration, images of registered Survey Plans are automatically made available to the relevant authorities for governmental administration purposes, through the Internet Delivery Service (IDS). IDS is a simple operating system that identifies the location of each Survey Plan scanned into DIIMS, so that an image of it can be forwarded to the council and any other authority responsible for that particular parcel of land. All new and amended Survey Plans are distributed by the IDS system.

111 LPI Sydney also makes the plan images available to LPI staff, government agencies, councils, relevant authorities, information brokers and members of the public through a number of mediums, which are outlined below. The access and copying fees charged by LPI are prescribed by the Real Property Regulation and the Conveyancing Regulation.

112 Most Survey Plans are remotely accessed, electronically. However, it is still possible to access a Survey Plan directly over the counter at LPI, Sydney. Members of the public order copies over-the-counter at LPI Sydney from time to time. Some survey searchers also request and obtain copies of documents, mainly plans, over the counter. Surveyor searchers and other members of the public may also obtain copies of a survey plan through DIIMS whenever they request a copy of a Survey Plan over the counter.

113 Title searches and images can be accessed through the Lands website, operated by LPI. The Lands website can be accessed by any member of the public, who can log on and request documents, including imaged plans, by entering credit card details, having these details validated and accepting a service charge, which varies depending on the type of search being performed. The image is then sent to the user’s computer where it may be viewed, stored and printed out.

114 Another form of electronic service delivery is Webgov, which is available to registered Government users only. Webgov is much used by Department of Lands employees and government agencies to obtain searches and images to enable them to carry out their government functions. Webgov was created using the Lands website and provides the same services that are available from the Lands website, as well as some extra services.

115 Users of Webgov order searches or images, including images of Survey Plans, by logging onto Webgov and requesting the desired searches. Unlike the Lands website, Webgov does not include a credit card payment system. The search results are sent to the user’s computer almost instantaneously. People who wish to access Webgov have to sign agreements, which set out the fee that is charged for delivery of particular plans.

116 The Local Government Portal (LGP) was created from Webgov in August 2004 and offers the same services as Webgov, as well as extra services, for instance, access to the IDS and to Valnet, to Local Government. The State also provides access through the Local Government Portal to copies of DPs and SPs. Users must sign an agreement before they get such access.

117 Since about late 1997, LPI has entered into licence agreements with information brokers, who are direct-access clients of LPI. Brokers may manage thousands of clients. The LPI acts as a wholesaler to the information brokers. The licence agreement with information brokers allows them to store an image, such as a plan, for a period of time. The reason for such storage is to allow the image to be sent to a client over a certain period. For instance, the customer’s printer may be broken when the search is first made. Information brokers contractually agree to delete searches received after one day. They provide various documents to their clients, including title searches, and images of plans. They do not provide data derived from the DCDB.

118 Information brokers obtain images by accessing LPI’s electronic plan images through the API, which operates 7 days a week, 17 hours a day. They communicate their requests to LPI electronically through the API. LPI then accesses the relevant document and sends a scanned image of that document through the fixed line to the information broker’s computer. The fixed line connections are a combination of frame relay lines and dedicated ISDN lines. Once the information broker has accessed the images through the API, it may provide the images to its clients through its own online applications or alternatively in hardcopy. Surveyor search firms use information brokers to obtain copies of Survey Plans for their client surveyors, who in turn require them to create new Survey Plans.

119 LPI Bathurst sells copies of the whole or part of the DCDB to the public. LPI supplies such copies in a number of digital formats. LPI supplies the DCDB in 17 different computer formats, on 10 different storage media, as well as by email.

120 There are relevantly two aspects of copyright in original literary, dramatic, musical or artistic works, in relation to the Crown. The first concerns ownership of copyright by the Crown. That aspect is regulated by ss 176 and 177 of the Copyright Act. The second aspect concerns the right of the Crown to do acts comprised in the copyright in a work owned by someone else. That aspect is regulated by ss 183 and 183A of the Copyright Act.

121 Section 176(2) of the Copyright Act relevantly provides that the State is the owner of the copyright in an artistic work made by, or under the direction or control of, the State. Section 177 of the Copyright Act relevantly provides that a State is the owner of the copyright in an artistic work first published in Australia if first published by, or under the direction or control of, the State. Sections 176 and 177 have their genesis in s 39 of the Copyright Act 1956 (UK). Those provisions, in turn, trace their origin to s 18 of the Copyright Act 1911 (UK) (the 1911 Act).

122 Since the enactment of the 1911 Act, the phrase "by, or under the direction or control of, the [Crown]" has governed ownership of copyright by the Crown, both in works made by or under the direction or control of the Crown in its various manifestations, and works first published by or under the direction or control of the Crown. "By" is concerned with those circumstances where a servant or agent of the Crown brings the work into existence for and on behalf of the Crown. "Direction" and "control" are not concerned with the situation where the work is made by the Crown but with situations where the person making the work is subject to either the direction or control of the Crown as to how the work is to be made. In the copyright context, that may mean how the work is to be expressed in a material form.

123 Direction might mean order or command, or management or control (Macquarie Dictionary Online). Direction might also mean instructing how to proceed or act, authoritative guidance or instruction, or keeping in right order management or administration (Oxford English Dictionary Online).

124 Control might mean the act or power of controlling, regulation, domination or command (Macquarie Dictionary Online). Control might also mean the fact of controlling or of checking and directing action, the function or power of directing and regulating, domination, command, sway: Shorter Oxford English Dictionary (5^th ed, Oxford University 2002).

125 Thus, when the provisions refer to a work being made under the direction or control of the Crown, in contrast to being made by the Crown, the provisions must involve the concept of the Crown bringing about the making of the work. It does not extend to the Crown laying down how a work is to be made, if a citizen chooses to make a work, without having any obligation to do so.

126 The question is whether the Crown is in a position to determine whether or not a work will be made, rather than simply determining that, if it is to be made at all, it will be made in a particular way or in accordance with particular specifications. The phrase "under the direction or control" does not include a factual situation where the Crown is able, de facto, to exercise direction or control because an approval or licence that is sought would not be forthcoming unless the Crown’s requirements for such approval or licence are satisfied. The phrase may not extend much, if at all, beyond commission, employment and analogous situations. It may merely concentrate ownership in the Crown to avoid the need to identify particular authors, employees or contracting parties.

127 The Parliament did not intend that the Crown would gain copyright, or share in copyright, simply as a side effect of a person obtaining a statutory or other regulatory approval or licence from the Crown. The Parliament is hardly likely to have intended that copyright would be lost merely by reason of satisfying a requirement or prerequisite for the grant by the Crown of an approval or a licence for something. The provisions in question were not intended to have the consequence that, where an approval or licence by the Crown was required in respect of a work, copyright would vest in the Crown as a side wind of the work complying with the requirements for such approval or licence (see Land Transport Safety Authority of New Zealand v Glogau [1999] 1 NZLR 261 at 272-273 ).

128 In relation to the first publishing of a work, as distinct from the making of a work, there must also be an element of the Crown determining whether or not the work is to be published. That may occur by operation of a statute or other regulatory provision that requires publication of a work that has a particular status, such as being registered, approved or the subject of a licence. The critical question, however, will be when such a work is first published.

129 Under s 29(1)(a) of the Copyright Act, an artistic work is to be deemed to be published if, but only if, reproductions of the work have been supplied to the public. Under s 29(6), in determining whether a work has been published or whether a publication of the work was the first publication of the work, any unauthorised publication or the doing of any other unauthorised act is to be disregarded. Under s 29(7), a publication is for those purposes to be taken to have been unauthorised if, but only if, copyright subsisted in the work and the act concerned was done otherwise than by, or with the licence of, the owner of the copyright.

130 Under s 31, copyright, in relation to an artistic work, is the exclusive right to do all or any of the following acts:

131 Under s 183(8), an act done under s 183(1) does not constitute publication of a work. Thus, if the making available of a work to the public by the State is done under s 183, it does not constitute publication. A fortiori, it is not first publication. On the other hand, if such making available by the State is not done under s 183(1), and there is no other licence taken to have been granted to the State to make a work available, it would follow that those acts of the State would be an unauthorised publication and, accordingly, under s 29(6) must be disregarded in determining whether the work has been published and whether the publication was the first publication of the work.

132 Section 183(1) of the Copyright Act relevantly provides that the copyright in an artistic work is not infringed by the State doing any acts compromised in the copyright, if the acts are done for the services of the State. Section 183(1) of the Copyright Act has its genesis in the Gregory Committee Report (London, 1952) at paragraphs 73-75. The Gregory Committee considered that it was anomalous that, whilst there were provisions permitting Crown use of patented inventions and registered designs, and for use of copyright material ancillary to such use, there were no corresponding statutory provisions permitting Crown use of any other copyright material. The Committee considered that it may well be at times necessary for the armed services, when seeking tenders for military equipment, to copy drawings of and documents about the equipment in question without always waiting for the prior consent of any owners of any copyright.

133 The Committee accordingly recommended that the power to reproduce copyright material "for the services of the Crown" should be granted by permanent legislation, subject to provisions for the payment of compensation, to be settled by the Court failing agreement between the parties. The Committee then went on to suggest that there should be added a limitation that the rights in question should be exercisable only in connection with equipment for the armed forces of the Crown and perhaps also for purposes of civil defence and essential communications. The compensation payable was to be in lieu of the royalty that would have been payable had the consent of the copyright owner been obtained by licence before the Crown use. The royalty could be assessed according to the nature and extent of the use by the Crown and all the circumstances of the case.

134 The Spicer Committee Report, (Canberra, 1959) observed that the 1911 Act did not appear to have bound the Crown. Accordingly, the Crown was not, in Australia, liable for infringement. The Spicer Committee referred to the Gregory Committee recommendation that the Crown should be empowered to reproduce copyright material in connection with the equipment of the armed forces and possibly also to civil defence and essential communications, subject to compensation. Those recommendations had, to a large extent, been put into effect by the provisions of the Defence Contracts Act 1958 (Cth).

135 Further, a majority of the Spicer Committee agreed with the view expressed by the Solicitor General of the Commonwealth that the Commonwealth and the States should be empowered to use copyright material "for any purposes of the Crown", subject to the payment of just terms to be fixed, in the absence of agreement, by the Court. The Spicer Committee considered that the occasions on which the Crown may need to use copyright material were varied and many. The majority thought that it was not possible to list those matters that might be said to be more vital to the public interest than others but considered that the rights of the authors should be protected by provisions for the payment of just compensation to be fixed, in the last resort, by the Court. The Spicer Committee recommended the enactment of provisions in respect of Crown use of copyright material along similar lines to those contained in the Patents Act 1952 (Cth) (the 1952 Act). For example, s 125(1) of the 1952 Act provided that, at any time after an application for a patent has been lodged or a patent has been granted, the Commonwealth or a State or a person authorised in writing by the Commonwealth or a State may make, use, exercise or vend the invention for the services of the Commonwealth or State.

136 The State contends that it directed and controlled the making of each of the Relevant Plans within the meaning of s 176 by reason of the following:

137 There can be no doubt that, before a Survey Plan can be registered and so become a registered plan and effect the framework for the existence of a title to land in New South Wales, very stringent requirements and prerequisites laid down by the State and its instrumentalities must be met with respect to the Survey Plan. In a sense, the State, by the provisions to which reference has been made above, directs and controls the preparation of any Survey Plan that is to be registered under any of the provisions so described.

138 However, there is nothing in the statutory and regulatory framework that compels any surveyor to prepare a Survey Plan that complies with the requirements of that framework. Of course, it is a condition precedent to the registration of a Survey Plan that it does comply precisely with those requirements. Nevertheless, a Survey Plan that is intended to become a registered plan is not prepared by reason of any compulsion from the State. A Survey Plan is prepared by a surveyor to satisfy the contractual obligation of the surveyor to his client.

139 The client of the surveyor would normally be the owner of the land to which the Survey Plan relates, although the client of the surveyor may be an agent of the owner or a person who intends to become an owner or has some other interest in the land in question. It might even be possible that the surveyor himself is the owner of the land. However, one of the prerequisites of being registered is that a Survey Plan is prepared with the consent of the owner of the land who must sign it. The owner, or any other person who has an interest in the land, could not have been compelled by the State to prepare, or to have prepared, a survey plan of the nature of the Relevant Plans.

140 At any time prior to registration, the owner of the land that is the subject of the Relevant Plans could have withdrawn consent for the subdivision that would be effected by registration. At any time, the surveyor could have declined to continue to perform the retainer on behalf of the client, whoever that may have been.

141 A person who prescribes the criteria for the registration of a Survey Plan does not direct or control the making of the plan. By laying down conditions for the grant of some privilege in respect of a work created by a citizen, the State does not control or direct the making of that work. It is of no consequence to the State whether or not a plan that satisfies its requirements is lodged for registration. Section 176 is concerned with direction or control of the making of a work where the State has some reason or purpose for having the work made. A surveyor’s practice is not controlled or directed by the State. Section 176 is directed to the activities and conduct of a person who is in some way answerable to the State.

143 Clearly enough, an intended registered plan must be approved by the State for registration. When the State’s officers are satisfied that a Survey Plan satisfies all of the statutory and regulatory requirements, the Survey Plan will be registered and it will then become a registered plan.

144 The State has a legal obligation, once a Survey Plan is registered and becomes a registered plan, to make the registered plan and copies of it available to the public. Such an obligation is imposed by s 96B(1) of the Real Property Act and s 199 of the Conveyancing Act. Under s 115 of the Real Property Act, the Registrar-General is obliged to provide certified copies of any registered instruments affecting land under the provisions of the Real Property Act.

145 Immediately upon registration, a registered plan is made available to the public as follows:

Clearly, those acts constitute publication of the registered plan by or under the direction or control of the State in terms of s 177. Thus, it may be that the Relevant Plans were first published as registered plans by, or under the direction or control of, the State.

146 However, the question is whether that is the first publication of the Relevant Plans. An artistic work is first published when it is made available to the public. Publication occurs when reproductions of the work are made available to the public. Publication occurs when a reproduction is put on offer to the public, where the person who makes the offer is prepared to supply on demand, whether or not the offer is advertised.

147 The Relevant Plans as registered plans are identical in all respects with the Survey Plans submitted for registration after all requisitions had been satisfied. The only difference between a Relevant Plan before its registration and the Relevant Plan as registered is the endorsement on it, or a copy of it, of evidence of registration. While that is of great juridical significance and importance, it is of no significance or importance whatsoever in relation to the Relevant Plan as an artistic work. The addition of the seal or evidence of registration does not give rise to a new or different artistic work.

148 On the basis of the Tribunal’s findings and the legislative and regulatory framework, it is clear that each of the Relevant Plans was published prior to registration. Thus, each Relevant Plan must have been provided by the surveyor to the owner of the land for signature. That was a publication. In so far as the Relevant Plans effect subdivisions, it was necessary for them to be provided to the local municipal council for a subdivision certificate. That also constituted publication. Both acts of publication must of necessity have preceded registration and publication by the State.

149 As indicated above (at [130]), under s 183(8), an act done under s 183(1) does not constitute publication of a work: even if the making available to the public by the State of a Relevant Plan is done under s 183, it does not constitute first publication. On the other hand, if such making available by the State is not done under s 183(1), and there is no other licence taken to have been granted to the State to make the Relevant Plan available, it would follow that those acts of the State would be an unauthorised publication and must be disregarded in determining whether the Relevant Plan has been published and whether the publication was the first publication of the Relevant Plan.

150 In essence, the applicability of s 177 depends upon whether or not, by submitting a Relevant Plan for registration, a surveyor must be taken to have authorised the State to reproduce and communicate that Relevant Plan to the public as a registered plan. That is question 5. If the State has such a licence, there is no need to rely on s 183(1) and s 29(6) does not apply. If the State does not have such a licence, it must rely on s 183(1); otherwise, the publication by the State would be unauthorised. However, if it relies on s 183(1), what is done does not constitute publication.

151 None of the Relevant Plans was first published by or under the direction or control of the State when it became a registered plan. It follows that question 3 must be answered no and question 4 does not arise.

152 Under s 36(1) of the Copyright Act, the copyright in an artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright. Under s 13, references in the Copyright Act to an act comprised in the copyright in a work is to be read as a reference to any act that the owner of the copyright has the exclusive right to do. Under s 15, an act is to be deemed to have been done with the licence of the owner of a copyright if the doing of the act was authorised by a licence binding the owner of the copyright.

153 Each surveyor who prepared a Relevant Plan is the owner of the copyright in that Relevant Plan. The Society accepts that the State is authorised to copy and make available to the public registered plans in the manner described above. Accordingly, the State is authorised to copy and make available each of the Relevant Plans in that manner. However, the Society says that the only source of such authority is s 183(1) of the Copyright Act. Clearly enough, all of the acts that the State does in relation to the Relevant Plans are done for the services of the State within the meaning of s 183(1). The Society says that, since the doing of those acts is to be taken by s 183(1) not to be an infringement of the copyright in the artistic work consisting of the Relevant Plan, there is no basis for the law to imply any other licence or authority for the State to do the acts in question.

154 The licensing by the State of persons as registered surveyors is to ensure that those who prepare and submit such Survey Plans have achieved and maintain the necessary competence to ensure that Survey Plans meet the requirements of the State for defining boundaries. When a surveyor prepared one of the Relevant Plans and submitted it to LPI for registration, the surveyor must have known and intended that, subject to satisfaction of requisitions, the Relevant Plan would become a registered plan for the purposes of defining boundaries of the parcels of land in the Relevant Plan.

155 There can be no doubt that the surveyor who was the maker of a Relevant Plan authorised the State to use the Relevant Plan in all of the ways described above. By assenting to the submission of the Relevant Plan for registration, the surveyor who made the Relevant Plan authorised the State to do everything that it was obliged to do in consequence of the registration of the Relevant Plan so as to become a registered plan. The consequence of registration is that the State was authorised to do the acts in question. It was an incident of each surveyor’s assenting to the submission of a Relevant Plan to LPI, with the intention of its becoming a registered plan, that the surveyor authorised the State to do with the Relevant Plan all of the acts described above that might otherwise constitute an infringement of the copyright in the Relevant Plan.

156 The systems of land holding in New South Wales and the statutory and regulatory framework described above depend in no manner upon the existence of the Copyright Act. If s 183 did not exist, it is clear that there would be no utility whatsoever for a surveyor in submitting any of the Relevant Plans for registration unless, by doing so, or assenting to that being done, the surveyor authorised the State to do what it is obliged by the statutory and regulatory regime described above to do, as a consequence of registering the Relevant Plan. Whether or not s 183 has the effect that the doing of the acts, because they are done for the services of the State, are deemed not to be an infringement of copyright, a surveyor must be taken to have licensed and authorised the doing of the very acts that the surveyor was intending should be done as a consequence of the lodgement of the Relevant Plan for registration.

157 The whole purpose and object of the preparation and lodgement with LPI of the Relevant Plans was to obtain registration of them so as to become registered plans, with the intention of creating or affecting legal rights in, or with respect to, the land to which they relate, or to create or affect the capacity to create or affect legal rights in respect of that land. The purpose was that lots in the Relevant Plans, whether a plan of subdivision or a strata plan, would become separate and discrete parcels in the register of land holdings of the State. Those lots or parcels would themselves become part of the cadastre of the State, by the infrastructure and mechanisms provided for under the Real Property Act, the Conveyancing Act, the Strata Freehold Act, the Strata Leasehold Act and the Community Land Act. The surveyors who prepared each of the Relevant Plans must be taken to have authorised the State to do, in relation to the Relevant Plans, everything that the State is obliged to do in consequence of their registration, quite apart from the coincidental effect of s 183(1).

158 Question 5 should be answered yes. Question 6 should be answered to the effect that the State is licensed to do everything that, under the statutory and regulatory framework that governs registered plans, the State is obliged or authorised to do with or in relation to registered plans.

159 It is common ground that, if question 7 arises and is answered yes, questions 8 and 9 must also be answered yes. However, since each of questions 1, 3 and 5 have been answered no in relation to each of the Relevant Plans, question 7 does not arise. It follows that questions 8 and 9 do not arise. Nevertheless, since question 7 has been argued in full, it is preferable to express a view on the question.

160 It is sufficient to deal with one of the two Relevant Plans identified as examples of entering details into the DCDB. The Oxley Plan, which was registered on 8 July 2004, is a plan of subdivision of lot 392 in DP1061979. The land that is the subject of the Oxley Plan is situated at Hoxton Park in the parish of Cabramatta, County of Cumberland. It is located in the local government area of Liverpool City Council. After the Oxley Plan was registered, the DCDB was updated by reference to it.

161 In order so to update the DCDB, an LPI operator at Bathurst identified in the DCDB the land that was being subdivided by the Oxley Plan. One of the sides of the existing boundary of that land aligned to a boundary of the Oxley Plan. The operator started at a point on the boundary of the relevant land as shown in the DCDB. That point could be a survey mark, such as SSM36964. The operator then measured off bearing and distance information from that point. The co-ordinates for survey marks, which are held by the State in a separate database, are a reference system similar to latitude and longitude, but in metres. The computer system works out, from the bearing and distance from the first known point, the co-ordinates of a second point.

162 The next bearing and distance information was then entered. The computer then calculated the co-ordinates of the next point which, assuming SSM36964 was taken as the starting point, was the top right hand corner of Lot 33. The operator continued keying in bearing and distance information for each point around the whole of the Oxley Plan. The computer calculated machine co-ordinates that were converted to grid co-ordinates.

163 Once the DCDB was updated, the co-ordinates defined each of the polygons in the Oxley Plan. The co-ordinates have no reference to the Oxley Plan itself. The co-ordinates are converted by the computer to machine co-ordinates. Those machine co-ordinates have a certain accuracy, dependent on the limitations of the State’s software and hardware, which may not be the accuracy shown on the Oxley Plan.

164 While entering the bearings and distances of the Oxley Plan, the operator detected an error. The plan would not mathematically close on the screen. Sheet 1 of Schedule 3 is the Oxley Plan as registered on 8 July 2004. Sheet 2 of Schedule 3 is an enlargement of the Oxley Plan, which shows its bearings and distances. Sheet 3 of Schedule 3 shows the Oxley Plan with the annotation ‘E’, indicating that it is an enhanced plan. Sheet 4 of Schedule 3 is an enlargement of the Oxley Plan, which has been amended by the surveyor and returned to LPI Sydney. Once the operator carried out various checks (such as lines not crossing and polygons not closing), the alteration was then stored in the DCDB.

165 The data of the DCDB can be accessed so as to bring up, on a computer screen, a graphical representation of the updated area, which may be printed. Set out in Schedule 4 is an extract from the DCDB that part of the DCDB that relates to the land that is the subject of the Oxley Plan. Comparison between that extract and the plan shown in Schedule 3 demonstrates that the shapes of the polygons that represent the lots in the subdivision effected by the registration of the Oxley Plan can be seen in the DCDB. However, while that pattern can be seen to be generally the same, there is vastly more information in the Oxley Plan itself than can be seen in the extract from the DCDB. For example, the DCDB does not contain lot numbers, bearings, distances or reference to survey marks. It cannot be said to be a substantial reproduction of the Oxley Plan.

166 The references to survey marks, bearings and distances that enable particular geometric shapes to be located on the surface of the Earth are essential content of a Survey Plan that becomes a registered plan. Without that information, there is no Survey Plan and, a fortiori, there can be no registered plan. Mere reproduction of the shapes of the polygons of the lots in a Survey Plan without that information is not a substantial reproduction of a registered plan.

167 It follows that the entering in the DCDB of data sourced from the Oxley Plan does not entail a reproduction of the Oxley Plan. It must also follow that the supply electronically of a copy of the base parcel layer of the DCDB, incorporating data sourced from the Oxley Plan, is not a communication to the public of the Oxley Plan and is not a reproduction of the Oxley Plan within the meaning of the Copyright Act.

168 If question 7 arose, it would be answered no. Questions 8 and 9 would therefore not arise.

169 Since questions 1 and 2 have been answered no, copyright does not vest in the Crown in right of the State by virtue of the provisions of either s 176 or s 177 of the Copyright Act. It follows, therefore, that neither of those sections effects an acquisition of property. A fortiori there is no acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution. Neither question 10 nor question 11 arises in the circumstances.

170 The questions stated for the Federal Court of Australia should be answered as follows:

171 In the circumstances, the Society should pay the State’s costs of the Stated Case.

172 I agree generally in the reasons of Emmett J. Nonetheless, given the importance of the topics raised, I wish to add a word or two of my own about the approach that should be taken to the construction of the Copyright Act 1968 (Cth) and about Crown copyright.

173 According to Professor Eskridge, statutory construction is becoming "the Cinderella of legal scholarship": W Eskridge Jr Dynamic Statutory Interpretation (1^st ed, 1994) at 1. The reason is that our legal system, which was once dominated by the common law, now has statutes as its primary source of law. Nowadays not only are legal academics looking more closely at the principles of statutory construction, so also are judges. The early English jurists accepted that it was necessary to interpret a statute "according to the intent of [those] that made it": 4 Cokes Institutes 330 (1^st ed, 1817). Blackstone explained the rule as follows: "The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by the signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.": 1 Blackstone’s Commentaries 59 (1^st ed, 1765). This purposive approach, evident in landmark cases such as Heydon’s Case (1584) 3 Co Rep 7a [76 ER 637], has had its ups and downs such as when judges applied the "plain meaning" or "golden" rule, but had become all but firmly entrenched by the end of the 20th century. It was accepted that every statute had some form of purpose or object and so could not properly be interpreted without close attention to that purpose. Put another way, statutory construction required an analysis not only of the text but also of the context.

174 Unfortunately there is, at present, a worrying attempt to impose a new approach to construction which some call textualism. The new approach holds that the task of construction is limited to a statute’s words. The only tools that a judge is permitted to have are a dictionary in one hand and a grammar of English in the other. It is to be hoped that this new theory will not take hold for it is both contrary to proper principle and will inevitably promote injustice.

175 The outcome of this case depends upon the proper construction of ss 176 and 177 of the Copyright Act. To arrive at the meaning of those sections it is necessary to have regard to their legislative history and to consider the state of the common law when the original incarnation of the two sections, s 18 of the Copyright Act 1911 (UK), was introduced.

176 With the introduction of printing in the United Kingdom the Crown claimed the prerogative right to authorise all species of publication on the premise that printing was a matter of State. For a detailed discussion see Attorney-General for New South Wales v Butterworth & Co (Australia) Ltd (1938) 38 SR(NSW) 195. This "very extensive and grasping" claim (so described by T E (later Lord Justice) Scrutton in The Law of Copyright (4^th ed, 1903) at 7) was cut back over the years. By 1911 the Crown only claimed the exclusive right to publish the following works: the authorised version of the Bible (The Universities of Oxford and Cambridge v Richardson (1802) 6 Ves 689; (1802) 31 ER 1260); Acts of Parliament (Basket v Cambridge University (1758) 1 W Bl 105; (1758) 96 ER 59); proclamations (Grierson v Jackson (1794) Ridg. L. & S. 304); law books (Roper v Streater (1672) Skin 234; discussed in (1672) 90 ER 107); Millar v Taylor (1769) 4 Burr 2303; (1769) 98 ER 201); almanacs (Gurney v Longman (1806) 13 Ves 493; (1806) 33 ER 379); and what were compendiously described as government publications.

177 On 31 August 1887 the Treasury published a Minute that described the government publications in which the Crown claimed copyright. They were: (1) reports of select committees of Parliament or of Royal Commissions; (2) papers required by statute to be laid before Parliament; (3) papers laid before Parliament by command; (4) acts of Parliament; (5) official books; (6) literary or quasi literary works; and (7) charts and ordinance maps. According to the Minute, Crown copyright would not be enforced in the first five classes but copyright in the last two would be strictly enforced. The Minute is reproduced in L.C.F. Oldfield, The Law of Copyright (1912) at 111-113.

178 While it was clear that the Crown could assert copyright in some government publications, the extent of its copyright was doubtful. For example Macgillivray in his annotation to the Copyright Act 1911, which was published in 1912, wrote that before the passing of s 18 of the Copyright Act the title of the Crown to government publications such as maps, reports and other papers "[had] not been very clear.": Annotation at 124. Scrutton said: "It is probable that the Crown still has special copyright in perpetuity in the authorised version of the Bible, the Book of Common Prayer, and possibly in Acts of Parliament.": Scrutton, The Law of Copyright (1903) at p 130.

179 The problem was that under the various Copyright Acts in force before the 1911 Act, copyright lay principally with the author. The only qualification was that found in s 18 of the Literary Copyright Act 1842 (UK) which provided, in substance, that a work prepared by an employee in the course of his or her employment vests in the employer. However, it is doubtful whether this provision, which in any event was limited to compilations, applied to the Crown. First of all, servants of the Crown were not usually employed under contract (Kynston v Attorney-General (1933) 49 TLR 300, 301) and so could not be regarded as "employees" in any strict sense. Secondly, many so-called servants of the Crown in fact held public office that had been established by statute or charter and were not employees in any sense.

180 Section 18 of the 1911 Act provided that where a work had "been prepared or published by or under the direction or control of [the Crown] or any Government department", the copyright, subject to any agreement with the author, belonged to the Crown. The provision was without prejudice to any rights or privileges of the Crown.

181 According to Macgillivray this section overcame the difficulties that faced the Crown in proving title to government publications and preserved the prerogative in the Bible and the Book of Common Prayer. Robertson, another well-known commentator of the time, said that the Crown’s rights in existing works appeared to be unaffected and that s 18 was wide enough "to cover the cases of plates or other originals of engravings, photographs, and portraits ordered and made for valuable consideration." Robertson, The Law of Copyright (1912) at 65. Incidentally, Robertson went on to say (at 66) that it was not clear whether a judge’s reasons for judgment was a work prepared or published by or under the direction of the Crown. He thought that while it may have been covered by the words of s.18 "the intention of the provision [did] not seem to be directed to such a work."

182 Sections 176 and 177 of the Copyright Act are modelled on s 18 of the 1911 Act. Section 176 is concerned with works made (the English statute used the word "prepared") "by, or under the direction or control of, the [Crown]" and s 177 with works first published in Australia "by, or under the direction or control of, the [Crown]." Thus each is concerned with three categories of works: (1) a work made or first published by the Crown; (2) a work made or first published under the direction of the Crown; (3) and a work made or first published under the control of the Crown. It is necessary to consider each in turn.

183 As regards a work made by the Crown, we are necessarily dealing with a fiction. Generally for copyright purposes a work is made by its author. What s 176 contemplates is that, in certain circumstances, the act of the author in making a work is to be attributed to the Crown. An attribution of this kind is a concept well known in the law. A common example is that of an agent acting within the scope of his authority for a disclosed principal. Generally the act of the agent is attributed to the principal; that is, the agent’s act is treated as the act of the principal. Another example arises under contracts of employment. Often an act of an employee will be attributed to his or her employer.

184 It seems unlikely that Parliament had in mind relationships of principal and agent or master and servant when referring to works made ‘by’ the Crown. The concept of a work made ‘under the direction or control’ of the Crown is more apt to cover the activities of servants of the Crown. In my opinion a work made ‘by’ the Crown is intended to deal with those kinds of government publications where the author is not subject to the direction or control of the Crown and would include works where, at least in a legal sense, the work has no author. The best example is an act of parliament. First of all, it could not be said that when enacting legislation the parliament is acting under the direction or control of the Crown. Secondly, it is not so easy, in a legal sense, to identify the author of an act of parliament. Yet it makes sense to treat legislation as having been made ‘by’ the Crown. Certainly Long Innes CJ was of this view: see Attorney-General v Butterworths (1938) 38 SR(NSW) at 259.

185 I also incline to the view that a judge’s reasons for judgment should be attributed to the Crown. I am familiar with some of the academic writings on the topic of copyright in judgments. Most writers consider this issue by enquiring whether it can possibly be said that a judge is acting under the direction or control of the Crown. If I might say so, that approach may be misconceived. It is simply beyond argument that a judge does not act under the direction or control of the Crown. On the other hand, if the question is: ‘Whether, as a matter of the construction of s 176, a judgment should be attributed to the Crown as a work made by the Crown?’ I see no reason why that should not carry an affirmative answer.

186 There is probably a degree of overlap in the case of works made ‘under the direction of’ or ‘under the control of’ the Crown. Broadly speaking, however, where the Crown has power to require a work to come into existence, the work is made under the "direction" of the Crown. If the Crown has dominion over the execution of the work then it is made under its "control". The assumption that underlies each concept (direction and control) is the existence of a relationship between the Crown and the author that authorises the Crown to give the direction or exercise the control as the case may be. That authority may be found in statute, including regulations made under a statute, contract or elsewhere. But, whatever its source may be, the authority must exist.

187 On this approach the Crown will have copyright in most works made by a servant of the Crown or by the holder of a public office in the performance of his or her duties. Whether or not copyright would go to works commissioned by the Crown, such as portraits and the like, involves difficult issues that need not be determined here.

188 There are no cases directly on point, but two cases provide some support for the reasons I have explained. In British Broadcasting Company v Wireless League Gazette Publishing Company [1926] Ch 433 the plaintiff, the predecessor of the British Broadcasting Corporation, was a limited company that had been established to acquire from the Postmaster-General a licence to broadcast to the public, by wireless telephony or telegraphy, news, concerts, lectures, entertainment and the like. The licence was subject to several conditions, one of which was that the plaintiff should, during the continuance of the licence, "transmit efficiently" on every day (including Sundays) "a programme of broadcast matter to the reasonable satisfaction of the Postmaster-General." In satisfaction of this condition the plaintiff published the "Radio Times" which contained details of the programs it would broadcast in the ensuing week. The defendant published parts of the Radio Times in its own publication, The Wireless League Gazette and was sued for copyright infringement. Mr Macgillivray, counsel who appeared for the defendant, put in issue the ownership of copyright. He argued that copyright in the Radio Times belonged to the Crown by virtue of s 18. Astbury J rejected this argument. He said (at 443) "The true effect of the memorandum, licence and supplementary agreement is that the plaintiffs are a licensed corporation entitled so long as they comply with the requirements of the licence to carry on their broadcasting service for profit and to acquire and hold assets to effect that service." He went on to say (at 444) that: "[S]o long as [the plaintiffs] are allowed to carry on their broadcasting business for their own profit ... the property in the Radio Times, including the programs, brought into existence for the purposes of that business, is their own."

189 I take this case to establish the following propositions. First, the relationship between the Crown and the plaintiff was not such that the act of the plaintiff in publishing the Radio Times could be attributed to the Crown. I think so much is uncontroversial. Secondly, merely to specify the form that a work should take does not constitute a direction to prepare the work or amount to control over its preparation. What is lacking is authority to give the direction to prepare the work or to control the manner in which the work was prepared.

190 The second case is Land Transport Safety Authority of New Zealand v Glogau [1999] 1 NZLR 261. A local statute required taxi drivers to keep log books of hours driven. The log books were to be in a form approved by the Secretary for Transport. The Crown claimed copyright under s 52(1) of the Copyright Act 1962 (NZ) which provided that the Crown was entitled to copyright: "In the case of every original literary, dramatic, musical, or artistic work made by or under the direction or control of [the Crown]." The New Zealand Court of Appeal held there was no Crown copyright in the log books. The Court acknowledged that by virtue of the statute there was a de facto direction as to the contents of the log books and control over their format and content. It noted, however, (at 272) that "the Crown was in no position to require [a driver] to produce, or continue to produce, the log book at all. There was no statutory duty and no contract which obliged [a driver] to do so." This took the case outside the section.

191 It follows from what I have said that s 176 has no application when a work is brought into existence by the voluntary act of the author. It matters not that the work must take a form that is dictated by the Crown if the work is to be used for a particular purpose.

Counsel for the Applicant:	Mr DK Catterns QC with Mr MR Ellicott
Solicitor for the Applicant:	Banki Haddock Fiora
Counsel for the Respondent:	Mr M Sexton SC, with Mr DM Yates SC, Ms J Baird and Ms R Pepper
Solicitor for the Respondent:	Crown Solicitor
Date of Hearing:	7 and 8 March 2007
Date of Judgment:	5 June 2007

BETWEEN:	COPYRIGHT AGENCY LIMITED Applicant
AND:	STATE OF NEW SOUTH WALES Respondent

JUDGES:	LINDGREN, EMMETT & FINKELSTEIN JJ
DATE OF ORDER:	5 JUNE 2007
WHERE MADE:	SYDNEY

BETWEEN:	COPYRIGHT AGENCY LIMITED Applicant
AND:	STATE OF NEW SOUTH WALES Respondent

JUDGES:	LINDGREN, EMMETT & FINKELSTEIN JJ
DATE:	5 JUNE 2007
PLACE:	SYDNEY

BETWEEN:	COPYRIGHT AGENCY LIMITED Applicant
AND:	STATE OF NEW SOUTH WALES Respondent
JUDGES:	LINDGREN, EMMETT & FINKELSTEIN JJ
DATE:	5 JUNE 2007
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2021 OF 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2021 OF 2007

Federal Court of Australia - Full Court Decisions

Copyright Agency Limited v State of New South Wales [2007] FCAFC 80 (5 June 2007)