Copyright Agency Limited v Department of Education (Queensland) [2025] ACopyT 2

This was a procedural Copyright Tribunal decision, not a final ruling on copyright payments or the best technical method for collecting usage data in schools. Copyright Agency Limited had commenced the proceeding in 2021 seeking a determination of what was a suitable method of data collection for electronic copying, communication and hard copy use of copyright works in Australian schools. By the time the matter came back for case management in August 2025, the Tribunal said no specific question had actually been put forward for determination and there was no evidence of a live dispute requiring a ruling.

The immediate trigger for the decision was a late attempt by the applicant to obtain coercive orders against Catholic Schools NSW Limited. The Tribunal refused that approach because the request had not been properly foreshadowed and was unsupported by evidence or submissions. It accepted an undertaking instead and used the occasion to make broader comments about the proper role of the Tribunal under the statutory scheme.

Copyright Agency Limited is the collecting society involved in the statutory licensing framework for certain educational copying and communications. The respondents were the bodies representing or administering government, Catholic and independent primary and secondary schools across Australia. Each respondent had issued a remuneration notice under s 113Q, undertaking to pay equitable remuneration for copying or communicating works permitted under s 113P and to provide reasonable assistance so that remuneration could be collected and distributed.

The parties had been dealing with each other for a long time. The application recorded that they had entered agreements about equitable remuneration and data collection for around 30 years. Agreements dated September 2019, entered into around 14 January 2020, set remuneration rates until 31 December 2022. Those agreements also dealt with the design and implementation of new systems for recording electronic reproductions and communications, and with the formulation and trial of an automatic data capture system for hard copy use. If no new systems were agreed by 30 September 2020, either side could apply to the Tribunal for a determination.

That is the background to the 2021 application. Copyright Agency asked the Tribunal to determine the question of what was a suitable method of data collection for school use of copyright works. But the Tribunal later observed that, despite the broad framing of the application, no specific question had been brought forward for decision in the more than four years since the proceeding began.

In the meantime, the parties continued practical work. In March 2023, orders were made by agreement requiring the respondents to provide summaries of the systems they proposed to pilot, and requiring the applicant to provide summaries of modifications and any alternative solution it proposed. In March 2024, further orders were made by agreement for survey pilots to be conducted in selected schools. Two pilots designed by the respondents were completed. Two pilots designed by the applicant were not.

The respondents later filed affidavit evidence from their solicitor, Zeina Milicevic, explaining difficulties encountered in implementing the applicant's pilots. The affidavit said there had been delays and expressed the opinion that most of the delays were attributable to the applicant and third parties engaged by it. A letter sent by the respondents on 24 October 2024 seeking information needed for implementation was said not to have been answered until 9 April 2025. On the morning of the hearing, the applicant filed a responsive affidavit from its solicitor, Katherine Haddock, explaining the steps it had taken during that period. The Tribunal said it was unnecessary to make detailed findings about the causes of delay, but concluded that it did not consider the respondents responsible for the slow implementation of the applicant's pilots.

The first issue was procedural and immediate. Late in the afternoon before the case management hearing, the applicant sent proposed orders to the Tribunal seeking to require Catholic Schools NSW Limited to nominate schools and dates and times for the applicant's survey pilots. The Tribunal had to decide whether it should make those coercive orders even though there had been no formal application, no proper notice, and no supporting evidence or submissions.

The second issue was broader. The Tribunal had to consider whether the proceeding itself still had utility. The application had been on foot for more than four years. Yet, according to the Tribunal, the applicant had not brought forward any specific question to be determined about data collection for electronic copying and hard copy use, and there was no evidence that the parties had a dispute requiring determination. That raised the possibility that the proceeding should be dismissed.

The reasons also contain an important comment about the statutory scheme. The applicant argued that the proceeding served as a backstop to negotiations, giving the parties ready access to the Tribunal if discussions broke down. The Tribunal expressed real doubt about whether using the proceeding in that way, as a kind of mediator or umpire for negotiations, was within the contemplation of Pts IVA and VI of the Copyright Act.

The Tribunal refused the applicant's attempted late coercive orders. It described the applicant's conduct as unsatisfactory. The reasons state that any application for coercive orders affecting another party should be made on reasonable notice to that party and, if opposed, should be supported by evidence and outline submissions. Here, the proposed orders had not been foreshadowed by any application to the Tribunal and were not accompanied by submissions or supporting evidence. The respondents said they had only received the proposed orders a few days before they were sent to the Tribunal.

The Tribunal also noted that Catholic Schools NSW Limited was willing to give an undertaking to use its reasonable endeavours to notify the applicant by 12 September 2025 of the names and addresses of the schools at which the applicant could attempt to conduct its pilots, and the date and time at which those pilots could be attempted. The Tribunal said that undertaking reflected the respondents' ongoing cooperation with the pilot program and removed the need for the coercive order sought.

The Tribunal added that it would not have made the coercive order in any event because of the notice and evidentiary deficiencies. It also noted that a question arose about whether the Tribunal had power to make an order in the form sought, but did not decide that issue because it had not received submissions on it and it was unnecessary to do so.

On the larger question of utility, the Tribunal said the proceeding as a whole had questionable utility. It emphasised that there was no evidence that the parties disagreed about a suitable method of data collection requiring determination. The respondents had conducted pilots of methods proposed by them, and the applicant wished to conduct pilots of alternative methods. Practical questions remained about the applicant's pilots, but the Tribunal said that if a question arose in the future about methods of data collection, a proceeding could be instituted at that time to resolve it.

Even so, the Tribunal did not dismiss the proceeding. It said it had strong reservations about the matter's utility, but considered dismissal inappropriate at that time. Instead, it made a practical case management order requiring any future application by the applicant for further orders to be made on at least 14 days' notice to the respondents and supported, as appropriate, by evidence and outline submissions. It also listed the proceeding for case management on 21 August 2026 and required the applicant to notify the Tribunal promptly if the matter was resolved.

Most businesses will never appear before the Copyright Tribunal, but the procedural lessons are broader than copyright. If your business is involved in a regulated framework, collective licensing arrangement, industry-wide payment system, audit process or shared data collection model, this decision shows the limits of formal proceedings. A tribunal or court generally expects a concrete controversy it can decide. It is less likely to see value in keeping a matter active simply as a fallback while parties continue to negotiate or test options.

The case also shows the importance of matching the remedy you seek to the material you have. If you want coercive orders that affect another party's operations, you should expect to identify the legal basis for the order, give reasonable notice, and support the request with evidence and concise submissions. A last-minute request may fail even if the underlying commercial frustration is genuine.

Another practical point is that undertakings can matter. Here, the undertaking from Catholic Schools NSW Limited solved the immediate issue without the need for a contested order. Businesses should not overlook whether a practical commitment from the other side can address the short-term problem while preserving room to argue the larger issues later.

The proceeding was commenced on 18 May 2021. The case management hearing considered in these reasons took place on 22 August 2025, and the determination was delivered on 26 August 2025 by O'Bryan J as Deputy President of the Copyright Tribunal. The Tribunal did not finally resolve the substantive data collection issue. Instead, it refused the late coercive orders, accepted the undertaking noted in the orders, and set a framework for any future applications.

The matter was listed for further case management on 21 August 2026. The applicant was also required to notify the Tribunal promptly if the matter resolved. That means the decision should be read as an interim procedural ruling with strong comments about utility and the proper role of the Tribunal, rather than as a final determination of the parties' substantive copyright arrangements.