In Copyright Agency Limited v State of New South Wales [2008] HCA 35 ^[1], the High Court decided that the State of New South Wales was not entitled to use surveyors’ plans (by copying the survey plans and providing them to the public) without fairly remunerating copyright owners.

The court decided that consulting surveyors (who appointed CAL as their collecting agency) own the copyright in their survey plans, which are “artistic works” protected by the Commonwealth Copyright Act.

There was no claim that the State had breached copyright.

The Court held that various factors militated against implying a licence in favour of the State in respect of its dealings with survey plans.

• First, nothing in the conduct of a surveyor in preparing plans for registration involved abandoning exclusive rights bestowed by the Act, particularly since the statutory licence scheme qualified those rights on condition that remuneration be paid for permitted uses.
• Secondly, surveyors could not practise their profession without consenting to the provision of survey plans for registration, knowing the subsequent uses to which plans would be put.
• Thirdly, an application by a surveyor for fair remuneration for government uses of survey plans involving copying and communication of the plans to the public after registration did not undermine clients’ use of the survey plans for lodgement for registration and issue of title.
• Fourthly, neither a surveyor nor their client could factor into fees under the contract between them, copying for public uses done by the State.
• Fifthly, the State charged for copies issued to the public.
• Sixthly, nothing in the express terms of the Act could justify excluding copying and communication of plans to the public.