Application by Isentia Pty Limited [2020] ACopyT 2

COPYRIGHT TRIBUNAL OF AUSTRALIA

Application by Isentia Pty Limited [2020] ACopyT 2 File numbers: CT 2 of 2017 CT 1 of 2018 CT 2 of 2018

The Tribunal: GREENWOOD J (PRESIDENT)

Date of decision: 15 July 2020

Legislation: Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB Copyright Act 1968 (Cth), ss 31, 113P, 113Q, 136, 137, 154, 155, 156, 157, 159 Copyright Amendment Act 2006 (Cth)

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Mills v Meeking (1990) 169 CLR 214 Momcilovic v The Queen (2011) 245 CLR 1 Phonographic Performance Company of Australia Ltd v Copyright Tribunal of Australia (2019) 141 IPR 406 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Salomon v A Salomon & Co Ltd [1897] AC 22 Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Thiess v Collector of Customs (2014) 250 CLR 664 Wilson v Anderson (2002) 213 CLR 401 Zheng v Cai (2010) 239 CLR 446 Jurisdiction and Procedures of the Copyright Tribunal, December 2000, Copyright Law Review Committee Legislative Intention [2015] MonashULawRw 1; (2015) 41(1) Monash University Law Review 1, the Hon Justice Stephen Gageler

Date of hearing: 22 May 2020

Date of last submissions: 22 May 2020

Category: No Catchwords

Number of paragraphs: 168

Counsel for the Applicant in CT 2 of 2017: Ms F St John

Solicitor for the Applicant in CT 2 of 2017: Baker McKenzie

Solicitor for the Applicant in CT 1 of 2018: Corrs Chambers Westgarth

Counsel for the Applicant in CT 1 of 2018 and CT 2 of 2018: Mr P Brereton SC and Ms L Thomas

Solicitor for the Applicant in CT 2 of 2018: Clayton Utz

Counsel for the Respondent in all matters: Mr C Dimitriadis SC and Ms E Whitby

Solicitor for the Respondent in all matters: MinterEllison

COMMONWEALTH OF AUSTRALIA

Copyright Act 1968 IN THE COPYRIGHT TRIBUNAL CT 2 of 2017

application by: MELTWATER AUSTRALIA PTY LTD (ACN 121 849 769)

BETWEEN: MELTWATER AUSTRALIA PTY LTD (ACN 121 849 769) Applicant AND: COPYRIGHT AGENCY LIMITED (ABN 53 001 228 799) Respondent

TRIBUNAL: GREENWOOD J (PRESIDENT)

DATE OF ORDER: 15 JULY 2020

THE TRIBUNAL DETERMINES THAT:

1. The answer to Question 1 is the answer set out at [157] of the Determination having particular regard to the observations at [146](1) to (18) of the Reasons for Determination and the discussion contained in the Reasons more generally. 2. The answer to Question 2 is the answer set out at [158] to [163] of the Determination having regard to the discussion in the Confidential Schedule under the headings "The Characterisation of the Clauses of the CA Licence", "Annexure D: Downstream Licence Terms" and "Other Annexures", and the discussion in the Reasons more generally. 3. The answer to Question 3 is the answer set out at [164] of the Determination and the discussion contained in the Reasons more generally. 4. The answer to Question 4 is the answer set out at [165] and [166] of the Determination having regard to the discussion in the Confidential Schedule under the heading "Characterisation of the Question 4 Items" and the discussion in the Reasons more generally. 5. The answer to Question 5 is the answer set out at [167] of the Determination having regard to the discussion contained in the Reasons more generally. 6. The answer to Question 6 is the answer set out at [168] of the Determination having regard to the discussion contained in the Reasons more generally.

COMMONWEALTH OF AUSTRALIA

Copyright Act 1968 IN THE COPYRIGHT TRIBUNAL CT 1 of 2018

application by: STREEM PTY LIMITED (ACN 600 621 627)

BETWEEN: STREEM PTY LIMITED (ACN 600 621 627) Applicant AND: COPYRIGHT AGENCY LIMITED (ABN 53 001 228 799) Respondent

TRIBUNAL: GREENWOOD J (PRESIDENT)

DATE OF ORDER: 15 JULY 2020

THE TRIBUNAL DETERMINES THAT:

1. The answers to the six questions referred to the Tribunal for determination in this proceeding are the answers set out in the Determination and the Reasons for Determination in CT 2 of 2017.

COMMONWEALTH OF AUSTRALIA

Copyright Act 1968 IN THE COPYRIGHT TRIBUNAL CT 2 of 2018

application by: ISENTIA PTY LIMITED (ACN 002 533 851)

BETWEEN: ISENTIA PTY LIMITED (ACN 002 533 851) Applicant

AND: COPYRIGHT AGENCY LIMITED (ABN 53 001 228 799) Respondent

TRIBUNAL: GREENWOOD J (PRESIDENT)

date of order: 15 JULY 2020

THE TRIBUNAL DETERMINES THAT:

1. The answer to the six questions referred to the Tribunal for determination in this proceeding are the answers set out in the Determination and the Reasons for Determination in CT 2 of 2017.

REASONS FOR DETERMINATION

GREENWOOD J (PRESIDENT):

Background 1 The question to be determined by the Tribunal in these proceedings, as a preliminary question, is whether the Tribunal has the power under s 157(6B) of the Copyright Act 1968 (Cth) (the "Act"), assuming the pre-conditions to the exercise of the conferred power (whatever its reach may be) are made out, to order that each applicant be granted a licence to do, or exercise, acts comprised in the copyright subsisting in the relevant works (or other subject matter), in the terms proposed by each applicant. It is a fundamental question. 2 Each applicant seeks orders under s 157(6B) in the alternative but the principal question is whether the Tribunal has the power to make orders that each applicant be granted a licence in the terms proposed by it. 3 The applicants are Isentia Pty Limited ("Isentia"), Streem Pty Limited ("Streem") and Meltwater Australia Pty Ltd ("Meltwater"). 4 Each applicant has brought an application before the Tribunal under s 157(3) of the Act. Those applications (Isentia, CT2 of 2018; Streem, CT1 of 2018; Meltwater, CT2 of 2017) are to be heard together as the principal proceeding from 12 October 2020 to 30 October 2020. 5 The respondent to each proceeding is Copyright Agency Limited ("CA"). 6 For present purposes, before examining the statutory provisions in some detail, it is sufficient to note that s 157(3) of the Act is an enabling facilitative provision in the sense that it sets out circumstances in which a person asserting particular claims "may apply to the Tribunal" under s 157. Section 157(3) begs the question of, "apply for what?", and the answer to that question is to be found in s 157(6B) which provides, relevantly, so far as claims made under s 157(3) are concerned, that if the Tribunal is "satisfied" that the applicant's claim under s 157(3) is "well-founded", the Tribunal must either make an order under s 157(6B)(a) addressing particular statutory factors, or order, under s 157(6B)(b), that the applicant be granted a licence in the terms proposed by the applicant or by the licensor concerned or by another party to the application. 7 The statutory requirement in s 157(6B) that the power, and obligation, cast upon the Tribunal to make an order of the kind described in either subparagraphs (a) or (b) if satisfied that the applicant's claim is well-founded, requires careful focus upon the formulation of the applicant's claim under s 157(3)(a) or (b) and the relationship between that claim and s 157(6B)(a) or (b) under which an order is sought. 8 Section 157(3) contemplates a person who claims that he or she "requires a licence", in "a case" to which a "licence scheme" does not apply, and who claims that a "licensor" has "refused or failed to grant the licence, or to procure the grant of the licence", and that, in the circumstances, it is "unreasonable" that "the licence" should not be granted: s 157(3)(a). Section 157(3) also contemplates a person who claims that he or she requires a licence (in a case to which a licence scheme does not apply) and the person claims that a licensor "proposes that the licence should be granted" subject to "the payment of charges, or to conditions, that are unreasonable": s 157(3)(b). 9 It should be noted that the sub-elements (a) and (b) of s 157(3) should be read as "and claims" that etc, followed by the text of the sub-elements, engaging the words "may apply to the Tribunal under this section". 10 It is convenient to now set out s 157 of the Act although particular subsections relevant to the later discussion are repeated later in these reasons: Subdivision H – References and applications relating to licences and licence schemes … 157 Application to Tribunal in relation to licences Refusal or failure to grant licence under licence scheme (1) A person who claims, in a case to which a licence scheme applies, that the licensor operating the scheme has refused or failed to grant him or her a licence in accordance with the scheme, or to procure the grant to him or her of such a licence, may apply to the Tribunal under this section. Licence scheme sets unreasonable charges or conditions for case (2) A person who claims, in a case to which a licence scheme applies, that he or she requires a licence but that the grant of a licence in accordance with the scheme would, in that case, be subject to the payment of charges, or to conditions, that are not reasonable in the circumstances of the case may apply to the Tribunal under this section. No licence scheme and licensor refuses or fails to grant reasonable licence (3) A person who claims that he or she requires a licence in a case to which a licence scheme does not apply (including a case where a licence scheme has not been formulated or is not in operation) and: (a) that a licensor has refused or failed to grant the licence, or to procure the grant of the licence, and that in the circumstances it is unreasonable that the licence should not be granted; or (b) that a licensor proposes that the licence should be granted subject to the payment of charges or to conditions, that are unreasonable; may apply to the Tribunal under this section. (4) An organization that claims that it is representative of persons requiring licences in cases to which a licence scheme does not apply (including cases where a licence scheme has not been formulated or is not in operation) and: (a) that a licensor has refused or failed to grant the licences, or to procure the grant of the licences, and that in the circumstances it is unreasonable that the licences should not be granted; or (b) that a licensor proposes that the licences should be granted subject to the payment of charges, or to conditions, that are unreasonable; may apply to the Tribunal under this section. Other parties to application (5) Where an organization (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to an application under any of the preceding subsections of this section, and the Tribunal is satisfied that the organization or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organisation or person a party to the application. Note: Under section 157B, the Tribunal may also make the Australia Competition and Consumer Commission a party to the application. Letting parties present their cases (6) The Tribunal must give the applicant, the licensor concerned and each other party (if any) to the application an opportunity of presenting their cases. Order dealing with application under subsection (1) (6A) If the Tribunal is satisfied that the claim of an applicant under subsection (1) is well-founded, the Tribunal must either: (a) make an order specifying, in respect of the matters specified in the order, the charges, if any, and the conditions, that the Tribunal considers to be applicable in accordance with the licence scheme in relation to the applicant; or (b) order that the applicant be granted a licence in the terms proposed by the applicant, the licensor concerned or another party to the application. Order dealing with application under subsection (2) or (3) (6B) If the Tribunal is satisfied that the claim of an applicant under subsection (2) or (3) is well-founded, the Tribunal must either: (a) make an order specifying, in respect of the matters specified in the order, the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to the applicant; or (b) order that the applicant be granted a licence in the terms proposed by the applicant, the licensor concerned or another party to the application. Order dealing with application under subsection (4) (6C) If the Tribunal is satisfied that the claim of an applicant under subsection (4) is well-founded, the Tribunal must either: (a) make an order specifying, in respect of the matters specified in the order, the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to persons who: (i) are specified in the order (whether by reference to a class or otherwise); and (ii) were represented by the applicant or were parties to the application; or (b) order that a licence be granted, in the terms proposed by the applicant, the licensor concerned or another party to the application, to each person who: (i) is specified in the order (whether by reference to a class or otherwise); and (ii) was represented by the applicant or was a party to the application. Definition of refusal or failure to grant a licence (7) A reference in this section to a failure to grant a licence, or to procure the grant of a licence, shall be read as a reference to a failure to grant the licence, or to procure the grant of the licence, as the case may be, within a reasonable time after a request to do so. 11 It should also be noted that, as the text reveals, s 157 contemplates applications to the Tribunal under subsection (1) concerning claims, in a case to which a "licence scheme" applies, where the licensor operating the scheme has refused or failed to grant the applicant a licence in accordance with the scheme, or to procure the grant to the applicant of such a licence. It also contemplates, under subsection (2), applications concerning claims, in a case to which a licence scheme applies, where the grant of a licence would be subject to the payment of charges, or to conditions, not reasonable in the circumstances. Section 157(6A) confers power on, and an obligation upon, the Tribunal to make an order of the kind described in s 157(6A)(a) or (b) if satisfied that a claim under s 157(1) is well-founded. Section 157(6B) addresses claims made under both s 157(2) and s 157(3). 12 The question of whether the Tribunal has the power to order that each applicant be granted a licence in the terms proposed by each of them has given rise to six questions to be addressed by the Tribunal. The parties have reached agreement about the framing of those six questions although the applicants contend that it is unnecessary to answer question 6. Obviously enough, I will return to those questions later in these reasons. 13 The parties have also reached agreement about a statement of the facts relevant to the determination of the six questions, the Statement of Agreed Facts ("SOAF"). I will turn to those facts shortly. 14 Resolving the central question which finds expression in the six questions gives rise to important matters of statutory construction. At this point, it should be noted that the primary submissions for the applicants are made by counsel on behalf of Isentia and Streem jointly. Meltwater, by counsel, has adopted those submissions and has raised an additional consideration going to the construction of the relevant provisions. 15 Before turning to the issue of attributing particular meaning to the relevant provisions of the Act as a matter of construction, the following factual matters should be noted.

The relevant factual matters 16 Each of Isentia, Streem and Meltwater is a media monitoring organisation that offers for sale and sells services that follow, monitor and analyse media content (including social media content) of specific interest to their customers. The respondent, CA, is a company limited by guarantee and duly incorporated. CA is a body corporate which meets the conditions set out in the definition of the term "licensor" in s 136(1) of the Act. 17 The elements of that definition together with the terms "licence" and "licence scheme" are set out below: 136 Interpretation (1) In this Part, unless the contrary intention appears: … licence means a licence granted by or on behalf of the owner or prospective owner of the copyright in a work or other subject-matter to do an act comprised in the copyright. licence scheme means a scheme (including anything in the nature of a scheme, whether called a scheme or tariff or called by any other name) formulated by a licensor or licensors and setting out the classes of cases in which the licensor or each of the licensors is willing, or the persons on whose behalf the licensor or each of the licensors acts are willing, to grant licences and the charges (if any) subject to payment of which, and the conditions subject to which, licences would be granted in those classes of cases. licensor means a body corporate for which both the following conditions are met: (a) the body is incorporated under a law in force in a State or Territory relating to companies; (b) the body's constitution: (i) entitles any owner of copyright, or any owner of copyright of a specified kind, to become a member of the body; and (ii) requires the body to protect the interests of its members connected with copyright; and (iii) provides that the main business of the body is granting licences; and (iv) requires the body to distribute to its members the proceeds (after deduction of the body's administrative expenses) from payments to the body for licences; and (v) prevents the body from paying dividends. 18 CA is a non-exclusive licensor of certain reproduction and communication rights with respect to works, which it is authorised to licence, contained in: (a) a printed edition of a newspaper, magazine or similar periodical; and (b) an electronic edition of a newspaper, magazine, website or other electronic news service (other than a journal). 19 The works contained in the description at [18](a) and (b) of these reasons are described as the "Licensed Works". The Licensed Works comprise literary works in which copyright subsists under the Act and thus the source of the reproduction and communication right is to be found in s 31(1)(i) and (iv) of the Act. The copyright subsisting in those Licensed Works is owned by "publishers". 20 CopyCo Pty Ltd ("CopyCo") is an Australia proprietary company limited by shares formed in 1999 to represent the interests of its publisher members in relation to the licensing of various specified works in which the publisher members and/or their related corporations own the copyright subsisting in those works. The current shareholders of CopyCo are Fairfax Digital Pty Limited, News Pty Limited, Bauer Media Pty Limited, Rural Press Pty Limited and APN Newspapers Pty Ltd. 21 CopyCo is not a "licensor" within the meaning of that term as defined in s 136(1) of the Act. 22 Under a document described as an "Agency Agreement" between CopyCo and CA, CopyCo has appointed, by clause 2, CA to act as its agent in granting sub-licences to, among other classes of users, media monitoring organisations ("MMOs"), including the applicants, to exercise specified rights in the Licensed Works: see clauses 2 and 3 of the Agency Agreement. 23 Each applicant requires the permission or consent or authority of the owner of the copyright in order to reproduce Licensed Works (or parts of Licensed Works) and to communicate those copies to its customers. Each applicant requires "a licence" under the Act for the purposes of s 157(3). 24 CA has offered to grant a licence to each applicant on the terms of a particular licence set out at Tab 3 of the material supporting the Agreed Statement of Facts: referred to in that document as the "CAL Licence" but referred to hereafter as the CA Licence. CA is authorised by CopyCo to grant the CA Licence offered to each applicant. As described earlier, each applicant has made an application to the Tribunal under s 157(3) of the Act. By their applications, each applicant claims that the CA Licence offered to them is subject to the payment of charges or to conditions that are unreasonable. 25 In each application, each applicant has proposed a licence on different terms to the CA Licence and each applicant seeks an order by the Tribunal under s 157(6B)(b) of the Act that it be granted a licence in the terms proposed by it (the "Proposed Licence"). In the alternative, as mentioned earlier, each applicant seeks an order under s 157(6B)(a) of the Act specifying the charges, and the conditions, that the Tribunal considers reasonable, in the circumstances, in relation to each applicant. Each applicant claims that its proposed use of the Licensed Works is in accordance with its respective Proposed Licence and claims that the charges and conditions in its respective Proposed Licence are reasonable. 26 As to the matters described at [24] and [25] of these reasons, CA says that it is not in a position to verify the claim that each applicant's proposed use of the Licensed Works is in accordance with the respective Proposed Licence of each applicant, and it denies the claim of each applicant that the charges and conditions in each Proposed Licence are unreasonable. 27 CA acknowledges that the Tribunal is conferred with power to make an order under s 157(6B)(a) specifying "the charges, if any, and the conditions" that the Tribunal considers reasonable, in the circumstances, in relation to each applicant. 28 As to the scope of the rights, the following matters are the subject of the Statement of Agreed Facts. 29 Certain publisher members of CopyCo have granted CopyCo a non-exclusive licence to sub-licence specified rights in certain copyright works from time to time pursuant to documents identified by CopyCo in a document described as "Summary of rights that publishers have granted CopyCo Pty Ltd the right to sub-licence", dated 18 February 2020 (otherwise known as the "CopyCo Summary of Rights"): Tab 73. That summary, commencing with the grant of particular rights on 20 March 2000 by News Limited and "Fairfax", identifies 23 categories of rights granted to CopyCo by a range of publishers over a period to 11 April 2017. The "grant" is the grant of a right to sub-licence the relevant right. The point of the summary is to identify with some precision the scope of the grant conferred by publishers on CopyCo. 30 The scope of CA's authority under the Agency Agreement earlier described has been varied from time to time pursuant to the documents identified by CA in a document described as "Summary of rights Copyright Agency Ltd is (or was) authorised by CopyCo Pty Ltd to sub-licence as its agent to MMOs", dated 18 February 2020 (otherwise known as the "CAL Summary of Rights"): Tab 82. That summary, commencing in the year 2000 by reference to the Agency Agreement, identifies 17 categories of rights the subject of an "authority" conferred by CopyCo on CA in the sense of granting CA an authority to grant licences (properly understood as sub-licences) to persons or entities including media monitoring organisations to exercise particular rights falling within any one of those 17 categories. The categories identify the precise description of the right, the type of licence, a description of the nature of the authority conferred and the source of the authority. The point of the summary is to identify with some precision the limits and boundaries of the authority conferred by CopyCo on CA (which may be a lesser conferral of authority than the authority conferred by the publishers on CopyCo). 31 As earlier mentioned, each applicant, by its Proposed Licence, has sought a licence from CA of particular rights subsisting in works as described earlier. The rights sought by each applicant pursuant to that licence that CA is not authorised to administer or sub-licence as agent of CopyCo are identified and summarised by CA in a document described as "Table of rights sought by the MMOs that CA is not authorised to administer/sublicence as agent of CopyCo", dated 13 May 2020 (otherwise known as the "Unauthorised Rights Summary"): Tab 83. That summary identifies the field of rights recited in each licence proposed by each of Isentia, Streem and Meltwater. The document is comprehensive and it seeks to do three things. First, it lists particular rights sought by MMOs that CopyCo has not authorised CA to administer or sub-licence (as CopyCo's agent) to media monitoring organisations. Second, it identifies whether CopyCo is authorised to sub-licence the rights sought by each applicant and, if so, whether CopyCo was willing to authorise CA to sub-licence those rights as its agent. Third, it identifies the rights comprised in the copyright (and incidents of those rights) relevant to the licence. 32 CA is not authorised by CopyCo to grant the CAL Licence with: (a) a term longer than two years, but nevertheless CA does not dispute that the Tribunal may determine the term (that is, the duration) of the CA Licence; and (b) respect to the countries that comprise the Territory in Isentia's Proposed Licence other than on the terms of the CA Licence. 33 The Proposed Licence of each applicant includes a licence of the following rights (or terms) which fall into one of two categories. The first is rights or terms which CopyCo has not authorised CA to grant when entering into licences with MMOs. The second is rights or terms that CopyCo does not have the authority, from the publishers, to sub-licence to MMOs. Those rights, or terms, in either of those categories (subject to particular qualifications), sought by the applicants, comprehend five categories of rights or terms as follows. 34 First, the rights or terms sought pursuant to Isentia's Proposed Licence includes a right or term permitting it to communicate to customers a link to a Licensed Work on a publisher's website where the Licensed Work is located behind a "paywall" (where, in the ordinary course, access to the article would only be available to a subscriber obtaining that access as an element of the service provided to subscribers paying the relevant fee), enabling Isentia's customer to view the Licensed Work even though the customer has not separately subscribed to, or registered for, access to that publisher's website. The Proposed Licence contains a provision casting an obligation on CA to use its best endeavours to ensure that Isentia's customer will be able to view that Licensed Work through the link and make a copy of it even if the customer has not separately subscribed to, or registered for, access to that publisher's website (the "Isentia User Copying Right"). Similarly, the Proposed Licence of Streem and Meltwater also contain a similar provision otherwise described as the "Streem and Meltwater Copying Right". 35 As to these matters, the parties agree that CopyCo is authorised to sub-licence the right to make a copy of a Licensed Work to MMOs, but has not authorised CA to sub-licence this right to MMOs; and that CopyCo does not have the right from its publishers (or the technological capability) to grant access to a work behind the respective paywalls of the publishers. 36 Second, the rights or terms sought pursuant to each Proposed Licence include a right or term to communicate to customers of the MMOs (by making available through a searchable archive) any and all copies of Licensed Works that are in a "Secure Portal" containing copies of Licensed Works for up to 12 months from the date on which they were copied, communicated or "scraped". 37 As to these matters, CopyCo is authorised to sub-licence this right to MMOs in respect of certain Licensed Works, but has not authorised CA to sub-licence this right to MMOs. 38 Third, the rights or terms sought pursuant to each Proposed Licence includes a right or term, under a downstream licence, to permit the customers of MMOs to copy and communicate to "Nominated Users", "Portions of Scraped Copies" of Licensed Works and "Copies of Licensed Works" where: (a) the term "communicate" has the same meaning as it has in the Act (and thus the right in question is otherwise described as the "Downstream Communication Right"); (b) in relation to Streem and Meltwater, "Nominated Users" "means each of your employees and directors and any person retained to provide services to you (for example, professional advisers) …", and MMO customers are obliged to only use Licensed Works for "internal purposes" (otherwise known as the "External Sharing Right"); (c) in relation to Isentia, the downstream licensee may store a Portion of a Scraped Copy of a Licensed Work or a Copy of a Licensed Work, without expressly limiting it to storage as an email, on a database or Intranet and excluding any storage in any other digital form (the "Downstream Storage Right"); (d) in relation to Streem and Meltwater, the Downstream Licensee may store a Portion of a Scraped Copy of a Licensed Work or a Copy of a Licensed Work as an email or on a database or Intranet for longer than 12 months from the date the licensee receives the Portion of a Scraped Copy of the Licensed Work or the Copy of a Licensed Work and until termination of the downstream licence (the "Downstream Unlimited Storage Right"). 39 The parties agree: that as to the matters at [38](a), CopyCo is authorised to sub-licence the Downstream Communication Right to MMO customers in respect of certain Licensed Works but has not authorised CA to sub-licence this right to MMO customers; that as to the matters at [38](b), CopyCo is authorised to sub-licence this right to MMO customers in respect of certain Licensed Works but as at 27 February 2020, has not authorised CA to sub-licence the External Sharing Right to MMO customers (although CopyCo is prepared in principle to authorise CA to sub-licence this right to MMO customers as agent for CopyCo on an ad hoc basis and only in respect of certain persons retained by an MMO customer to provide services to that customer, excluding public relations, media and marketing companies); that as to the matters at [38](c), CopyCo is only authorised to allow Downstream Storage as an email, on a database or Intranet for no more than 12 months; and that as to the matters at [38](d), CopyCo is not authorised to sub-licence the Downstream Unlimited Storage Right to MMOs. 40 Fourth, the Isentia Proposed Licence contains a term that provides that the "Major Mastheads" as set out in an annexure to the Proposed Licence cannot cease to be a Licensed Work during the operation of the licence, except where the relevant Masthead ceases to be published or where Isentia has given prior written consent to exclude the relevant Mastheads (the "Excluded Works Term"). As to this term, CA says that: (a) the rights that publishers have granted to CopyCo are on the basis that publishers can withdraw their publications from CopyCo; (b) CopyCo does not control the withdrawal of publications by individual rights holders; and (c) CA's "mandate" allows CopyCo to withdraw publications to reflect any withdrawal of publications from CopyCo by the publishers. 41 Fifth, as to Streem and Meltwater, the Proposed Licence contains a term for the provision of translations of Licensed Works or Portions of Scraped Copies of Licensed Works and/or a right to authorise such conduct (the "Adaptation Right"). As to this matter, the parties agree that CopyCo is not authorised by the publishers to sub-licence this right to MMOs. 42 These matters at [33] to [41] represent a description of rights sought by each applicant which fall into one of the two categories described at [33] subject to the qualifications described throughout those paragraphs. 43 As to the licence proposed to each applicant by CA, otherwise described as the CA Licence, the parties agree that the CA Licence does not contain a number of things sought by each applicant, as follows. 44 It does not contain any Adaptation Right. 45 It does not contain the Isentia User Copying Right or the Streem and Meltwater User Copying Right. 46 It does not contain a Searchable Archive Right, but does include a right to store Copies of Licensed Works to create a searchable archive in a "Secure Portal of Copies of Licensed Works (and Portions of Scraped Copies of Licensed Works)" for up to 12 months from the date on which they were first copied or scraped; and to use that searchable archive for the purpose of displaying and communicating to customers, in response to keyword searches, particular Licensed Works that the customer has previously received in full text as part of a "Press Monitoring Service" and so as to display and communicate to customers Portions of Scraped Copies of Licensed Works accompanied by a link to the relevant Licensed Work on the relevant publisher's website. 47 It does not contain the Excluded Works Term and retains a right in CA to exclude Licensed Works from the licence. 48 It does not contain the Downstream Communication Right, the External Sharing Right, the Downstream Storage Right and the Downstream Unlimited Storage Right, but contains a form of Downstream Licence setting out the terms for copying and communicating Licensed Works to Nominated Users where the term "communicate" means "to make a work available in digital or other electronic machine-readable form to Nominated Users by means of the Licensee's Intranet or by email", but "does not include external emails, extranet posting or the act of making a Licensed Work available to the public on an internet webpage or via publicly available documents"; where Nominated Users means "each employee or director of the Licensee" and does not include any external third parties; and where the licensee must not store a Licensed Work or a Copy of a Licensed Work as an email or on a database or Intranet, or in any digital form, for longer than 12 calendar months. 49 The parties also agree that particular matters concerning aspects of the Agency Agreement as between CopyCo and CA are relevant to the questions in issue. These matters are described as confidential, and accordingly they are contained in a Confidential Schedule to these reasons. 50 It should be noted that at the request of the Tribunal, CA sought an indication from CopyCo, in respect of each instance in which CopyCo, but not CA, was authorised to sub-licence a specified right to an MMO or an MMO customer, of whether or not it would be prepared to authorise CA to sub-licence that right. The CopyCo Board resolved on 2 March 2020 that it was prepared, on an in-principle basis, to authorise CA to sub-licence a number of additional rights to MMOs or to MMO customers as agent. These rights are described as the "Additional Rights" and elements of them are mentioned earlier in these reasons. The content of the Additional Rights are set out in the Confidential Schedule on the assumption that the precise formulation of the Additional Rights is likely to be a confidential matter. 51 Although these Additional Rights have not been incorporated into the CA Licence as currently proposed, CA accepts that the form of the licence that may be the subject of an order by the Tribunal under s 157(6B) would extend to the Additional Rights, in addition to the rights otherwise covered by the CA Licence, subject to the charges and conditions the Tribunal determines to be reasonable. 52 Although historically, each applicant has sought a licence on different terms, Isentia has amended its Proposed Licence to take account of recent developments in relation to the scope of rights which CopyCo has resolved to authorise CA to sub-licence to MMOs or to MMO customers as agent, and Streem and Meltwater have indicated that they propose to adopt the amendments proposed by Isentia as elements of the licence proposed by them. Thus, the Tribunal proceeds on the footing that all three applicants, as a matter of substance, are seeking Proposed Licences in the same terms. 53 It should also be noted that the parties agree that the Tribunal should proceed on the footing that the summaries set out at Tabs 73, 82 and 83 are correct and, of course, the Tribunal acts on the footing of the Statement of Agreed Facts: T, p 4, lns 35-45; T, p 5, lns 1-11. CA also seeks to rely on the affidavit of Mr Suckling which addresses some matters of contextual background. I admit that affidavit and have had the benefit of reading it.

Other provisions of the Act 54 The remaining provisions of the Act that should be noted for the purposes of this application are these: 136 Interpretation … (2) In this Part: (a) a reference to conditions is a reference to any conditions other than conditions relating to the payment of a charge; … (c) a reference to a person who requires a licence of a particular kind includes a reference to a person who holds a licence of that kind if the person will, at the expiration of the period for which the licence was granted, require a renewal of that licence or a grant of a further licence of the same kind; … 137 Cases to which licence schemes apply (1) For the purposes of this Part, a case shall, subject to the next succeeding subsection, be deemed to be a case to which a licence scheme applies if, in accordance with a licence scheme for the time being in operation, a licence would be granted in that case. (2) For the purposes of this Part, where, in accordance with a licence scheme: (a) the licences that would be granted would be subject to conditions by virtue of which particular matters would be excepted from the licences; and (b) a case relates to one or more matters falling within such an exception; that case shall be deemed not to be a case to which the scheme applies. … Subdivision H – References and applications relating to licences and licence schemes 154 Reference of proposed licence schemes to Tribunal (1) Where a licensor proposes to bring a licence scheme into operation, he or she may refer the scheme to the Tribunal. … (4) The Tribunal shall consider a scheme referred under this section and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, confirming or varying the scheme or substituting for the scheme another scheme proposed by one of the parties, as the Tribunal considers reasonable in the circumstances. … 159 Effect of order of Tribunal in relation to licences … Order under section 157 specifying conditions and charges (4) Where the Tribunal has made an order on an application under subsection 157(1), (2) or (3) specifying charges, if any, and conditions, in relation to the applicant, in respect of the matters specified in the order, then if: (a) the applicant has complied with the conditions specified in the order; and (b) in a case where the order specifies any charges – he or she has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained; the applicant shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he or she had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order. (5) Where the Tribunal has made an order on an application under subsection 157(4) specifying charges (if any) and conditions, in relation to the persons, or to persons included in the classes of persons, specified in the order, in respect of matters specified in the order, then, if: (a) any such person has complied with the conditions specified in the order; and (b) in the case where the order specifies any charges – the person has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained; that person shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he or she had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order. (6) Where a person in relation to whom an order referred to in subsection (4) or subsection (5) applies does, in relation to any of the matters specified in that order, anything that, apart from that subsection, would be an infringement of copyright but would not be such an infringement if he or she were the holder of a licence in respect of the doing of that thing granted by the owner of the copyright concerned on the conditions and subject to payment of the charges (if any) specified in the order, that person is liable to pay to the owner of the copyright the amount of any charges that would be payable if he or she were the holder of such a licence and the owner of the copyright may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner of the copyright. (7) To avoid doubt, subsections (4) and (5) do not apply to an order that a person be granted a licence. Order under section 157 that person be granted licence (8) A person whom the Tribunal has ordered under section 157 be granted a licence in the terms proposed by the applicant, the licensor concerned or another party to the application under that section: (a) is taken, for the purpose of proceedings for infringement of copyright, to have been granted the licence in those terms; and (b) is liable to pay the owner of the copyright concerned the amount of any charges that would be payable if the person had been granted the licence in those terms. Note: Paragraph (a) – if those terms made the licence subject to conditions and the person did not comply with the conditions, the licence will not give the person a defence in the proceedings. (9) The owner of the copyright may recover the amount described in paragraph (8)(b) from the person in a court of competent jurisdiction as a debt due to the owner.

The principles governing the attribution of meaning to the statutory text – questions of construction and interpretation 55 It is often said that the task of attributing meaning to statutory text begins and ends with the text. Of course, there is no acontextual language spoken or written by anyone. References to construction beginning and ending with the text are not intended to suggest that attributing meaning to the text occurs without reference to context. Ultimately, however, the aim is to examine, and return to, the text and attribute meaning to it. 56 In Norman Lindsay's iconic work of children's literature, The Magic Pudding, Being the Adventures of Bunyip Bluegum and his friends Bill Barnacle & Sam Sawnoff, Bill Barnacle makes a statement to the personified Pudding, Albert, which causes Albert to respond by asking Bill Barnacle what the statement means. Bill Barnacle responds, "severely", by saying, "Let words be sufficient, without explanation" (Angus & Robertson, 1995 Edition at p 169). Bill Barnacle's observation that the meaning was to be found in the words without explanation was an inappropriate response because it denied the role of context at the very outset of the quest for meaning. Context matters in every use of language, whether oral or written, but ultimately only for the purpose of usefully illuminating the actual words spoken or the language adopted as text, whatever the discourse or instrument being construed might be. 57 When Mrs Malaprop, in Richard Brinsley Sheridan's play The Rivals (first performed on 17 January 1775), says to Sir Anthony Absolute that her ward, Lydia Languish, should be "instructed in geometry, that she might know something of the contagious countries", Sir Anthony understood those words to mean that Lydia should be "instructed in geography, that she might know something of the contiguous countries" because, in context, Sir Anthony understood that Mrs Malaprop was a person who either tortured the English language or who selected words with some broad phonetic similarity to the words she was trying to find (see p 29 of the text of The Rivals in the digitized Library of Congress version of the Cornell University edition of 1910 which is regarded as the "only authentic version of the play", J Q Adams Jr). 58 Sir Anthony also knew that when Mrs Malaprop talked about Lydia needing to have "a supercilious knowledge in accounts" (at p 29), she meant "a superficial knowledge in accounts" and when she described her ward as being "as headstrong as an allegory on the banks of the Nile" (at p 74), Captain Absolute understood her to mean that Lydia was "as headstrong as an alligator on the banks of the Nile", and when she described education as being useful to Lydia so that "she might reprehend the true meaning of what she is saying" (at p 29), Sir Anthony Absolute understood Mrs Malaprop to be saying that Lydia "might comprehend the true meaning of what she is saying". Thus, in context, Sir Anthony (and Captain Absolute) and those regularly engaging with Mrs Malaprop understood precisely the meaning she was intending to convey by the language she used. 59 At least one of the many obvious differences between statutory text and conversational discourse is that although both engage context in attributing meaning to the actual language used, conversational language will most likely not exhibit the necessary degree of structure, discipline, consistency, coherence or unity of object or purpose demanded of statutory text, leading to the attribution of meaning to the language used. As to some aspects of these matters, see the observations of Lord Hoffmann in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 774-780. 60 In Thiess v Collector of Customs (2014) 250 CLR 664 at [22] ("Thiess"), French CJ, Hayne, Kiefel, Gageler and Keane JJ observed that statutory construction involves "attribution of meaning to statutory text", and emphasised the methodology for doing so by reference to the observations of the Court in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] ("Consolidated Media Holdings"), mentioned later in these reasons. The modern quest is not so much one of trying to discover the "intention of the legislature" which is a common but "very slippery phrase" (Wilson v Anderson (2002) 213 CLR 401, Gleeson CJ at [8] adopting the description by Lord Watson in Salomon v A Salomon & Co Ltd [1897] AC 22 at 38, "a common but very slippery phrase") and, "as everyone knows, the intention of Parliament is somewhat of a fiction" [emphasis added] (Mills v Meeking (1990) 169 CLR 214, Dawson J at 234; Zheng v Cai (2010) 239 CLR 446, French CJ, Gummow, Crennan, Kiefel and Bell JJ at [28]), or a "convenient phantom" (Sloane v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443), or a "metaphor" (Momcilovic v The Queen (2011) 245 CLR 1, Gummow J at [146](v)). 61 Rather, "intention" is a "conclusion" reached about the proper construction of the law in question and "nothing more": Momcilovic, Hayne J at [341]. In Thiess at [23], the Court also observed that objective discernment of the statutory purpose is "integral to contextual construction" and also observed that s 15AA of the Acts Interpretation Act 1901 (Cth) (the "AIA Act"), which requires that the interpretation that would best achieve the purpose or object of an Act be preferred to each other interpretation, is a "particular statutory reflection of a general systemic principle" [emphasis added]. 62 Parliament manifests its intention by the use of language, "and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the [fiction of] legislative will": Wilson v Anderson, Gleeson CJ at [8]. Ascertainment of the meaning to be attributed to statutory text is "asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts": Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [43], reaffirming the observations in Zheng v Cai at [28]. There are many particular rules of construction which are engaged in the task of attributing meaning to statutory text, but the critical governing principles are these. 63 In CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 ("CIC"), Brennan CJ, Dawson, Toohey and Gummow JJ said this: It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. [emphasis added] 64 The observation that the "modern approach" to statutory construction "insists" that context be considered "in the first instance", using context in the "widest sense", was also reflected in the observations of McHugh, Gummow, Kirby and Hayne JJ a year later in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] ("Project Blue Sky") where their Honours said that the process of construction "must always begin by examining the context of the provision that is being construed" [emphasis added]. That was thought to be the emphatic imperative of the "process of construction" having regard to the observations and influence of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 who said at 397 that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed" [emphasis added]. Seeking out those surer guides is the very process of attribution of meaning. 65 In Project Blue Sky, the plurality also said at [69] that the "primary object of statutory construction" is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute; that a legislative instrument "must be construed" on the prima facie basis that its provisions are intended to give effect to harmonious goals; and that where conflict appears to arise from the language of particular provisions, the conflict must be resolved, if possible, by adjusting the meaning of the competing provisions to achieve that result which will "best give effect to the purpose and language of the provisions while maintaining the unity of all the statutory provisions". 66 At [71], the plurality observed that "[f]urthermore, a court construing a statutory provision must strive to give meaning to every word of the provision". At [78], the plurality said this: However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. [emphasis added] 67 A decade later, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] ("Alcan"), Hayne, Heydon, Crennan and Kiefel JJ said this: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. [emphasis added] 68 In Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, the Court, French CJ, Hayne, Crennan, Bell and Gageler JJ at [39] said this: 39 "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text [quoting the passage from Alcan at [47], quoted at [64] of these reasons]". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. [emphasis added] 69 More recently, in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 ("SZTAL"), Kiefel CJ, Nettle and Gordon JJ at [14] said this about ascertaining the meaning of a statutory provision: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. [emphasis added] 70 In SZTAL, Gageler J emphasised, at [35], the observation of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 ("K&S") that the modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might arise and, at [36], Gageler J emphasised the observations of the plurality in CIC at [408] (quoted at [63] of these reasons). At [37], Gageler J said this: Both of those passages [in K&S and CIC] have been "cited too often to be doubted". Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and only in so far as, it assists in fixing the meaning of the statutory text" [citing Thiess quoting the passage in Consolidated Media Holdings at [39]]. [emphasis added] 71 At [38]-[40], Gageler J also said this: 38 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies" [quoting Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [66]]. 39 Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation" [citing s 15AA of the Acts Interpretation Act 1901 (Cth)] "is in that respect a particular statutory reflection of a general systemic principle" [citing Thiess at [23]]. 40 Exactly the same process of contextual construction is involved when the question is one of what content is to be given to a statutorily invoked concept which is expressed in words the ordinary or grammatical meaning of which is well-enough understood but insufficiently precise to provide definitive guidance as to how the concept is to be understood and applied in the particular statutory setting. … [emphasis added] 72 Mention has already been made in these authorities of s 15AA of the Acts Interpretation Act 1901 (Cth). That section is in these terms: 15AA Interpretation best achieving Act's purpose or object In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. 73 Section 15AB sets out the range of extrinsic material to which reference might be made if it is capable of assisting in "the ascertainment of the meaning of the provision". Reference to the relevant material may be made to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act or to determine the meaning of the provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and the purpose or object underlying the Act, leads to a result that is manifestly absurd or unreasonable. Section 15AB(2) sets out the relevant material. It is not necessary to recite that subsection in these reasons. 74 On the question of construction of the provisions of the Act relevant to the scope of the power conferred on the Tribunal under s 157(6B), the Tribunal applies the principles discussed at [59]-[73] of these reasons.

Aspects of the Act 75 The broad structure of the Act at one level is to identify the subject matter in which copyright subsists ("works" having regard to Part III and "subject matter other than works", having regard to Part IV); the nature of the exclusive rights comprised in the copyright in each class of subject matter within those descriptions; the ownership of those exclusive rights; the duration of the rights; and the remedies available to those in whom the exclusive rights are vested (and, in the relevant circumstances, the rights of an exclusive licensee of the owner), in circumstances where infringement, as that concept is understood, of those rights has occurred. 76 At another level, the Act recognises that notwithstanding the bundle of exclusive rights conferred on the owner of the copyright, certain acts of others do not constitute an infringement of the copyright in the relevant subject matter. Divisions 3, 4, 4A and 4B of Part III contain many particular examples of such acts. Sections 103A to 106 of Division 6 of Part IV of the Act are examples of such acts concerning subject matter other than works. Other examples are contained in Divisions 2 and 3 of Part IVA. 77 Apart from provisions of the kind described at [76] of these reasons, the Act also recognises that some conduct (not falling within provisions of the kind just mentioned) will not infringe the copyright in, for example, a work by copying or communicating the whole or part of the work. That is so where the conduct is that of a body administering an educational institution (as defined, s 10(1)) and the factors at s 113P(1)(a) to (e) are satisfied. So too where such a body copies or communicates a copy of the whole or part of a broadcast (s 113P(2)) where the factors at s 113P(2)(a) to (d) are satisfied. One of those factors involves a remuneration notice applying to the relevant educational institution which is in force and by which the relevant body has given an undertaking to a collecting society to pay equitable remuneration for "limited copying or communication": s 113Q(a) and (b). Another of those factors (s 113P(1)(e)(i) and (ii), and s 113P(2)(d)(i) and (ii)) is that the copying and communication complies with any agreement between the relevant collecting society and the body, and any determination by the Tribunal of a relevant question including a determination of the equitable remuneration to be paid by the relevant body to the collecting society for distribution to its members. These examples of "licensed copying" are described as either "statutory" or "compulsory" licences. They are statutory or compulsory because the licence arises by operation of the Act itself "if" the factors at s 113P(1)(a) to (e) and s 113P(2)(a) to (d) (in this example) are engaged and they arise irrespective of the wishes or willingness of the owners of the copyright to grant such licences. Division 4 of Part IVA bears the heading "Educational Institutions – Statutory Licence". 78 CA is a collecting society for the purposes of Division 4 of Part IVA for the purposes of the example given above. 79 Division 2 of Part VII of the Act is another example of such licences: see s 183 generally and s 183(1), (4) and (5) particularly; s 183A and s 183B. There are other examples of such statutory or compulsory licences. 80 There are also other licences contemplated by the Act. 81 Some of them are entirely non-statutory but collectively administered. Some are statutory but only in the sense that there is a statutory mechanism in the Act enabling a "licence" to be brought into existence as between a person claiming to require a licence to exercise a right comprised in the relevant copyright and a person described as a "licensor". The boundaries of that mechanism is in issue in these proceedings. There are also "licence schemes" or arrangements formulated by one or more licensors in relation to one or more acts engaging the exercise of one or more rights comprised in the relevant copyright, by which such a licensor (or licensors) is willing (or the persons on whose behalf the licensor(s) is acting, are willing) to grant a licence to a person to engage in a particular act, subject to the payment of charges (if any) and compliance with conditions subject to which licences would be granted. Some such schemes which meet the integers of the defined term "licence scheme" can be "referred" to the Tribunal under s 154 of the Act and after having considered the scheme, the Tribunal is required, by s 154(4), to make such order confirming or varying the licence scheme or substituting for the scheme another scheme proposed by one of the parties, as the Tribunal considers reasonable in the circumstances. 82 The notion that a "licence scheme", as one of its essential statutory features, sets out the "classes of cases" in which the relevant licensor (or the persons on whose behalf the licensor(s) is or are acting) is "willing" to grant a licence within the licence scheme as formulated, makes plain that the licensor (or relevant appointor upstream of the licensor) has voluntarily submitted to the scheme and its framework, subject to the power of the Tribunal on referral to confirm or vary the scheme or substitute another scheme for the referred scheme. That power, however, does not extend to varying the licence scheme beyond that formulated by a licensor so as to go beyond "aspects of the incidents of copyright in respect of which the licensor or licensors (or the persons on whose behalf they act) are willing to grant licences": Phonographic Performance Company of Australia Ltd v Copyright Tribunal of Australia (2019) 141 IPR 406, the Court (Besanko, Middleton and Burley JJ) at [135] ("PPCA"). It will be necessary to return to aspects of the Court's decision in PPCA as, although the questions in issue in this proceeding engage s 157(3) and s 157(6B) rather than a licence scheme or provisions relevant to a licence scheme, CA places significant analogical emphasis on the reasoning in PPCA as guiding the approach to the scope of the Tribunal's power conferred under s 157(6B) in an application under s 157(3), in the context of Part VI of the Act, and the contended limitations in the scope of that power. 83 When the Act was enacted (commencing on 1 May 1969), s 136(1) contained a definition of the term "licence" in these terms: In this Part, unless a contrary intention appears – "licence" means a licence granted by or on behalf of the owner or prospective owner of the copyright in a literary, dramatic or musical work, or the copyright in a sound recording, being – (a) in the case of a literary, dramatic or musical work – a licence to perform the work or an adaptation of the work in public, to broadcast the work or an adaptation of the work, to make a sound recording or cinematograph film of the work or of an adaptation of the work for the purpose of broadcasting the work or adaptation or to cause the work or an adaptation of the work to be transmitted to subscribers to a diffusion service; or (b) in the case of a sound recording – a licence to cause the recording to be heard in public or to make a record embodying the recording for the purpose of broadcasting the recording; … [emphasis added] 84 When enacted, the Act contained a definition of "licensor" in these terms: "licensor" means – (a) in relation to licences in respect of a literary, dramatic or musical work – the owner or prospective owner of the copyright in the work or any body of persons (whether corporate or unincorporate) acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences; and (b) in relation to licences in respect of a sound recording – the owner or prospective owner of the copyright in the recording or any body of persons (whether corporate or unincorporate) acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences. [emphasis added] 85 The definition of the term "licence scheme", as enacted, was and remains in the terms set out at [17] of these reasons. For convenience, that definition is set out again below in the style as originally enacted: "licence scheme" means a scheme (including anything in the nature of a scheme, whether called a scheme or tariff or called by any other name) formulated by a licensor or licensors and setting out the classes of cases in which the licensor or each of the licensors is willing, or the persons on whose behalf the licensor or each of the licensors acts are willing, to grant licences and the charges (if any) subject to payment of which, and the conditions subject to which, licences would be granted in those classes of cases. 86 According to those definitions, and the evident textual correlation between the definition of "licence" and "licensor", the reference to the word "case" seems to be a reference to the particular subject matter, that is, a literary, dramatic or musical work or a sound recording, and the "licence" in each case is a licence to do a particular nominated act comprised within the copyright in the nominated work or sound recording. 87 The definition of "licence scheme", in the context of the definition of the terms "licence" and "licensor", contemplated a "scheme" (by whatever taxonomy might be selected), formulated by one or more licensors (as defined), which sets out the "classes of cases" (that is, whether literary, dramatic or musical works or, as to subject matter other than works, a sound recording), in which the licensor or licensors are willing (or those upstream of them are willing), to grant licences to do one or more of the identified things concerning the relevant subject matter, recited at (a) or (b) of the definition of licence, otherwise falling within the exclusive rights of the copyright owner. 88 In the context of a licence scheme, the "classes of cases" comprehended the subject matter of the class of case (for example, particular publications falling within the class – literary works), and the specified act (or right) corresponding to a literary work (in this example). The scheme might comprehend more than one class of subject matter and one or more of the recited acts in which event there would be classes of cases. The "classes of cases" comprehended both the subject matter and the specified act or right corresponding to the nominated subject matter as those acts (or any one of them) represented the content of the licence the licensor (or those upstream of the licensor) was "willing" to grant. 89 The definition of "licence" and "licensor" was amended by the Copyright Amendment Act 2006 (Cth) (the "2006 Act") which commenced on 11 December 2006, so as to introduce into the Act the definitions of "licence" and "licensor" at [17] of these reasons. The term "licence" was detached from its particular relationship with literary, dramatic or musical works and sound recordings and the particular acts recited in the earlier definition, and defined to mean a licence granted by, or on behalf of, the owner or prospective owner of the copyright in a work (any work) or other subject matter (any subject matter other than works), to do an act (any and all acts) comprised in the relevant copyright. A "licence" is not defined to mean a licence to exercise one of the exclusive "rights" comprised in the relevant copyright. It is defined to mean a licence to do an act comprised in the relevant copyright. Accordingly, each and every act which is an expression of the exercise of the relevant right, can be the subject matter of the licence. A licence expressed as a licence to exercise an exclusive right might, as a matter of construction of the relevant instrument, carry with it a right in relation to all acts falling within the conception of the relevant exclusive right. A licence defined by the Act in terms of a licence to do an act comprised in the copyright contemplates that each act in the copyright might be made the subject of a licence. 90 The term "licensor" was amended to detach it from its particular correlation with the earlier definition of "licence" and define it to mean a licensor of a particular kind of entity. Those amendments were described as implementing aspects of the recommendations of the Copyright Law Review Committee's Report entitled Jurisdiction and Procedures of the Copyright Tribunal, December 2000 (the "CLRC Report"). The Explanatory Memorandum ("EM") (in the House of Representatives) for the Bill explains that, subject to the new definition of "licensor", the new definition of "licence", "covers a licence to do any act comprised in the copyright in any work or other subject matter": EM, para 11.1. 91 As to the definition of "licensor", the EM explains that the purpose of the amendment is to "limit the licences and licence schemes that can be the subject of an application or reference to the Copyright Tribunal to those that are collectively administered", with the result that "a licensor must be able to grant licences for a substantial number of copyright works or other subject matter in a "class" of such materials, eg, literary works or musical works or sound recordings which were made by various different creators" [emphasis added]: EM, para 11.2. The EM also recites that the "licensor may have that authority as owner of the relevant copyrights, as exclusive licensee or as agent for the owners": EM, para 11.2. 92 In the CLRC Report, the Committee recommended that the Tribunal's jurisdiction over non-statutory licences be confined exclusively to the review of licences administered by a collecting society including (by majority view) all licence schemes and transactional licences administered by a collecting society: paras 11.67, 11.100 and 11.101. Corresponding amendments were recommended to the definition of "licensor" to reflect a role of collective administration of works or subject matter in a class, as reflected in the EM quoted earlier. 93 No change was made to the definition of "licence scheme" by the 2006 Act. A licence scheme continued to comprehend a scheme formulated by a licensor (or licensors) setting out the classes of cases in respect of which the relevant statutory persons are "willing" to grant licences and the Full Court in PPCA has held that "classes of cases" comprehends any work or other subject matter and those acts comprised in the relevant copyright, as formulated for the purposes of the licence scheme, and brought within the scheme. 94 Having regard to the emphasis placed by CA upon the Court's decision in PPCA, it is convenient at this point to examine aspects of the Full Court's decision. 95 In PPCA, the question before the Full Court, said to be analogically relevant for present purposes, was whether the Tribunal had the power under s 154(4) of the Act to make an order varying a licence scheme referred to it under s 154(1) so as to include three classes of rights (which would then be the subject of licences granted under the scheme) notwithstanding that the licensors, granting PPCA the non-exclusive right to grant non-exclusive licences of the copyright in the sound recordings owned or controlled by them (contained in "input agreements"), had not conferred on PPCA the right to grant non-exclusive licences of the three classes of rights in question. The rights in question were (without describing the full content of the rights): the Audiovisual Streaming Rights; the On-demand Offering Rights; and the Digital Content Rental Rights. 96 At [128], the Court observes that a licence scheme must set out the "classes of cases" which the licensor, or those on behalf of whom the licensor acts (described as "broadly, the copyright owners"), are "willing" to grant licences. The reference to classes of cases was held to be a reference "to such of the incidents of copyright that the owner gives permission to the collecting society to licence" in the scheme. At [131], the Court notes that s 137 (quoted at [54] of these reasons) addresses the topic of cases to which licence schemes apply. The Court regarded s 137 as aiding in the resolution of the "potential overlap" between a "case" (the incidents of copyright the subject of permission given to the collecting society) and a "condition", which is to be regarded as "any term that does not concern the scope of the rights granted" (such as terms going to warranties, the mechanics of payment, choice of law and other such terms). The Act provides that a reference to a "condition" is a reference to "any conditions other than conditions relating to the payment of a charge": s 136(2)(a). In PPCA, the Court regarded, for the purposes of a licence scheme, a reference to a condition as a reference to any conditions other than conditions relating to a charge, and other than, the incidents of copyright the subject of the permission given to the collecting society. 97 As to the question of the scope of the power conferred on the Tribunal under s 154(4) (quoted at [54] of these reasons), the Court in PPCA construed the reference to "scheme" in s 154(4) as a reference to a "licence scheme" and thus the power to make an order confirming or varying the scheme or substituting for the scheme another scheme, was confined to an order concerning a scheme exhibiting the "central" requirement that the classes of cases the subject of licences granted under the scheme be ones the licensor collecting society, or the owners conferring authority on the collecting society, is "willing to grant": PPCA at [141]. As to this central requirement, the Court said this at [141]: The reference to "willing" in this context is to be understood to mean that those persons [the collecting society or broadly the owner of the copyright] are prepared to offer for licence those particular aspects, or "classes of cases", of the copyright the subject of the scheme. Taken together these matters indicate that the classes of cases in which the licensor or the person on whose behalf the licensor is willing to grant licences will be parts of the copyright interest of the owners that are offered by the collecting society in the licence scheme referred to the Tribunal (as may be varied by licensor from time to time). [emphasis added] 98 At [142], the Court said this: The second and third characteristics [of a licence scheme], being the charges and conditions to be applied, do not contain reference to the willingness or otherwise of the licensor or person on whose behalf the licensor acts. Accordingly, a scheme as determined by the Tribunal that includes conditions and charges that conflict with proposals made by these people will remain within the definition of a licence scheme and be within the power of the Tribunal provided that it is reasonable in the circumstances. [emphasis added] 99 At [143], the Court expressed observations about the relationship between the conclusions at [141] and [142] and the policy and purpose of Part VI of the Act, within which both s 154 and s 157 fall, in these terms: In our view this approach is consistent with the policy and purpose of Pt VI of the Act, which is to confer on the Tribunal power to supervise the relationship between collecting societies and persons in need of licences. The starting point mandated by s 154(1) is the voluntary offer of a licence scheme by the licensor on behalf of its members. It is not a scheme for the compulsory licence of rights, which are addressed in other provisions of the Act. Indeed, the absence of the prescriptive provisions applicable to compulsory licensing provides a further indication that this is the correct approach. [emphasis added] 100 At [144], the Court observed that the "real point" of distinction in determining the scope of the power to make an order of the kind described in s 154(4) "turns on the 'willingness' or otherwise of the parties mentioned to grant the licence in respect of the classes of cases identified". The Court observed that the willingness or otherwise is to be ascertained from the form of licence scheme proposed by the licensor, which represents the interests of the copyright owners and accordingly may be taken to reflect the "willingness" of both. 101 At [145], the Court said this: The consequence of our construction is that the Tribunal does not have power to vary the scheme proposed by a licensor insofar as it affects the classes of cases in respect of which the licence is proposed to be granted. In our view this does not lead to an absurd or unworkable result (as Foxtel contends). Subdivision H (ss 154-159) of Div 3 of Pt VI of the Act concerns the regulated approval of licence schemes volunteered by rights owners. These licence schemes are to be contrasted with the grant of statutory licences under the Act, where statutory mechanisms provide for the compulsory licence of certain acts within the copyright of an owner, subject to certain provisos. An example of the latter is s 108 of the Act, which provides a defence to copyright infringement in a sound recording performed in public on terms requiring, inter alia, the payment to the copyright owner of equitable remuneration the amount of which is to be determined by the Tribunal if the parties are unable to agree. Under s 154 of the Act a degree of decisional freedom is given to the Tribunal to impose reasonable charges and conditions on the licensor, but not to expand the cases in respect of which the copyright licence is to be granted. To do so would permit the Tribunal to impose a compulsory licence upon the rights owners in circumstances where the Act indicates that this is not its intention. [emphasis added] 102 Before examining the contentions of the applicants, it is convenient, having regard to the matters discussed at [95] to [101] of these reasons in relation to PPCA and the emphasis CA places on the reasoning in PPCA, to note the essential position adopted by CA. 103 CA contends that Part VI of the Act is concerned with the regulation of licence schemes and licences which are, in their nature, "voluntary" in the sense that the licensor, and those on whose behalf it acts, are "willing" and "able" to grant licences of the acts an applicant seeks to do. CA contends that these voluntary licences are to be contrasted with statutory licences under the Act which, in their nature, are "compulsory". In other words, the Act itself confers a licence, subject to particular statutory factors, to exercise the relevant right by doing certain things, whether or not the owner of the copyright in the particular subject matter is "willing" to grant a licence to do those things. CA contends that an application under s 157(3) can only engage a claim for a licence that a licensor is able to grant, and the scope of the power under s 157(6B) does not extend to an order to grant an applicant a licence of a scope of proposed rights (or acts) which go "beyond the mandate or authority of the licensor", notwithstanding that the Tribunal has a degree of "decisional freedom" to impose or determine "charges" and "conditions" it considers reasonable in the circumstances. CA contends that it has a particular mandate from the copyright owners, conferred by CopyCo, and the scope of the acts in respect of which it is able to grant licences are those set out in the CA Licence supplemented by the Additional Rights set out in the Confidential Schedule. CA says that s 157(6B) does not confer a power to make an order granting a licence that reaches beyond those rights. 104 Apart from these matters, CA notes that the applicants attach significance to the circumstance contemplated by s 157(3)(a) that a licensor has "refused or failed to … procure the grant of the licence" (that is, the required licence), and the power in s 157(6B)(b) to order that "the applicant be granted a licence in the terms proposed by the applicant", as suggesting the conferral of a power to order the grant of a licence that goes beyond the mandate of the licensor. CA says that attributing such a meaning to those words operates to convert the regulation of voluntary licences under s 157 of the Act into a regime of compulsory licences conferring rights that, in this case, CA is not authorised to grant.

The contentions of the applicants and aspects of the statutory provisions 105 At the outset, the applicants accept that even though the Tribunal is not "technically" bound by the decision of the Full Court in PPCA, the Tribunal would "give significant weight" to the Full Court's reasons. Nevertheless, they point out that the decision concerns questions of construction of the essential characteristics of a "licence scheme", as defined, the centrality of the notion of a licensor (or person on whose behalf a licensor acts) being "willing" to grant licences (in relation to "classes of cases" as construed), and the scope of the particular power conferred on the Tribunal under s 154(4) of the Act. 106 As to s 157 (quoted at [10] of these reasons), the following matters should be noted. 107 Section 157 falls within subdivision H of Part VI of the Act. Part VI is concerned with the topic "Copyright Tribunal of Australia" and subdivision H is concerned with "References and applications [to the Tribunal] relating to licences and licence schemes". 108 Section 154 is concerned with a referral by a licensor (as defined in s 136(1)) who proposes to bring a licence scheme into operation. Section 154(2) identifies who are to be the parties to such a reference. The Tribunal may make the Australian Competition and Consumer Commission (the "ACCC") a party to a reference. Persons or organisations with "a substantial interest in the operation of the scheme" may be made parties: s 154(3). The possible orders to be made by the Tribunal are set out at s 154(4) as described earlier. Matters in relation to an order under s 154(4) are set out at s 154(5). Steps the licensor may take where a licence scheme has been referred are set out at s 154(6). Section 154(7) provides for the coming into operation of the scheme. 109 Section 155 is concerned with a reference to the Tribunal of an existing licence scheme in circumstances where a dispute has arisen with respect to the "terms of the scheme" between a licensor operating the scheme and, either, an organisation claiming to be representative of persons requiring licences in cases included in a class of cases to which the scheme applies, or any person claiming that he or she requires a licence in a case included in a class of cases to which the scheme applies. Section 155 reflects a similar approach to that adopted in s 154 concerning parties to the reference, the ACCC, persons claiming a substantial interest, matters relating to orders and timing. As to the power of the Tribunal to make orders, it must make an order in relation to the scheme it considers reasonable in the circumstances, "doing one of the following to the scheme so far as it relates to the relevant class": confirming the scheme; varying the scheme; or substituting for the scheme another scheme proposed by one of the parties: s 155(5). 110 Section 156 also engages a reference of a licence scheme to the Tribunal. It provides that where the Tribunal has made an order under either s 154 or s 155, then, subject to s 156(2), at any time while the order remains in force, the licensor operating the scheme, an organisation claiming to represent persons requiring licences in cases included in a relevant class of cases governed by the order, or any person claiming that he or she requires a licence in a case included in that class, may refer the scheme to the Tribunal in so far as it relates to cases included in that class. Section 156(2) provides that a scheme shall not be referred at a time earlier than that set out at (a) or (b). Again, s 156 adopts a similar approach to parties, the ACCC and related matters. Subsection (5) adopts subsections (3), (4) and (6) to (10) inclusive of s 155 and applies those subsections as part of s 156. The scope of the orders in relation to the scheme, are set out at s 156(4) in the same terms as s 155(5) as mentioned at [109] of these reasons. 111 Each of these sections, if engaged by a relevant person, provides for a mechanism enabling the Tribunal to exercise supervision over a proposed licence scheme or an existing licence scheme governed by orders under s 154 or s 155 so as to either confirm or vary or substitute the scheme for another as the Tribunal considers reasonable in the circumstances (and in the case of orders under s 155(5) and s 156(4) the orders are to relate to "the relevant class", or the scheme so far as it is referred). As the Full Court observed in PPCA at [143], the policy and purpose of Part VI of the Act is to confer on the Tribunal power to supervise the relationship between collecting societies and persons in need of licences. 112 As to s 157, the applicants note that s 157(1) is concerned with a claim by a person in a case to which a licence scheme applies. 113 That subsection contemplates that a licensor operating the licence scheme has "refused" or "failed" to grant the claimant a licence "in accordance with the scheme" or "to procure the grant" to such a person of such a licence. That subsection, although not s 157(3) upon which the applicants rely, focuses upon licences that would be in accordance with the scheme and, having regard to PPCA (which is directly concerned with a licence scheme), that means licences that would engage only the incidents of copyright brought within the scheme. The subsection captures the notion of a failure or refusal of a licensor to procure the grant of a licence which would be in accordance with the scheme. Section 157(1) does not engage a claim to a licence which goes beyond one which would be in accordance with the scheme, or the procuring of a licence which goes beyond one which would be in accordance with the scheme. Once s 157(1) is engaged, the claimant may apply to the Tribunal and seek one of the orders contemplated by s 157(6A) of the Act, according to its terms. 114 Section 157(2) also engages a claim in a case to which a licence scheme applies and contemplates a claim that the grant of a licence in accordance with the scheme would be made subject to the payment of charges, or to conditions, that are not reasonable in the circumstances of the case. Once s 157(2) is engaged, the claimant may apply to the Tribunal and seek one of the orders contemplated by s 157(6B) of the Act, according to its terms. 115 Section 157(3) is concerned with a claim by a person that he or she requires a "licence" in a case to which a licence scheme does not apply. The claim would thus engage a claim to be granted, "by or on behalf of the owner or prospective owner of the copyright in a work or other subject matter", a licence "to do an act comprised in the copyright": "licence", s 136(1). Section 157(3) is the subsection upon which the applicants rely in bringing the principal applications. Although s 157 is set out at [10] of these reasons, s 157(3) as a matter of convenience is repeated below: No licence scheme and licensor refuses or fails to grant reasonable licence (3) A person who claims that he or she requires a licence in a case to which a licence scheme does not apply (including a case where a licence scheme has not been formulated or is not in operation) and: (a) that a licensor has refused or failed to grant the licence, or to procure the grant of the licence, and that in the circumstances it is unreasonable that the licence should not be granted; or (b) that a licensor proposes that the licence should be granted subject to the payment of charges or to conditions, that are unreasonable; may apply to the Tribunal under this section. 116 Section 157(3) engages a number of elements. 117 First, it engages a claim by a person who requires a "licence in a case to which a licence scheme does not apply", including, as the language makes plain, a case where a licence scheme has not been formulated or is not in operation. 118 In this context, the elements of s 137 of the Act should be noted. Section 137 provides that for the purposes of Part VI, a case shall, subject to subsection (2), be deemed to be a case to which a licence scheme applies if, in accordance with a licence scheme for the time being in operation, a licence would be granted in that case: s 137(1). The qualification in subsection (2) is that, for the purposes of Part VI of the Act, where, in accordance with a licence scheme, the licence that would be granted, would be subject to conditions, by virtue of which, particular matters would be excepted from the licence, and a case relates to one or more matters falling within such an exception, that case "shall be deemed not to be a case to which the scheme applies". 119 Section 157(3) is engaged, at the threshold, so far as the introductory words are concerned, where a person claims to require a licence in a case where no licence scheme applies because no licence scheme (as defined) has been proposed (including a licence scheme not formulated or not in operation) and thus does not apply, but also where a claim is made for a licence that would be granted in accordance with a licence scheme but subject to "conditions" excepting "particular matters" from the licence where a case "relates to" one or more "matters", "falling within such an exception". In that second circumstance, that "case" is deemed "not to be a case to which the scheme applies" which would seem to bring the case within s 157(3) and engage the question of whether the conditions referred to in s 137(2)(a) "are unreasonable" for the purposes of s 157(3)(b) of Part VI. Section 157(2) also addresses questions concerning "conditions" and whether they are reasonable or not in the circumstances, but those questions only arise in circumstances of "a case to which a licence scheme applies". 120 Section 157(3) seems to comprehend two possibilities as described above. 121 Second (and in conjunction with the first or threshold element), s 157(3) engages a claim that a licensor has done one or more of three things. First, the licensor has "refused" to grant the licence. Second, the licensor has "failed" to grant the licence. Third, the licensor has refused or failed "to procure the grant of the licence". In all three cases, "the licence" seems to be a reference to a licence the person claims he or she requires and, in addition to that element, the person claims that, in the circumstances, it is "unreasonable" that the licence should not be granted: the s 157(3)(a) elements. 122 Third, as an alternative set of circumstances to those at s 157(3)(a), the person claiming to require the licence claims that a licensor "proposes that the licence should be granted" (which, again, seems to be a reference to the required licence as claimed), but subject to the "payment of charges" or "to conditions" that are unreasonable: the s 157(3)(b) elements. 123 In circumstances of claims engaging the threshold element and the elements of s 157(3)(a), or the threshold element and the elements of s 157(3)(b), the person may apply to the Tribunal under the section which, so far as applications under s 157(3) are concerned (and also s 157(2)), engages the possibility of orders under s 157(6B) of the Act according to the terms or integers of that section. 124 The following further aspects of s 157(3) should be noted. 125 First, the section contemplates a claim that a person requires "a licence" (in a case to which a licence scheme does not apply), which is a reference to the defined term, "licence", in s 136(1) of the Act. The reference to a "licence" in s 157(3) is a reference to a claim to require the grant of a licence by, or on behalf of, the owner (or prospective owner) of the copyright in the relevant subject matter, to do an act comprised in the copyright. The licence required by an applicant under s 157(3) must be a licence of identified acts comprised in the relevant copyright and it must be a claim to a grant of a licence by the owner or prospective owner of the copyright, or a grant of such a licence by someone acting on behalf of the owner of the relevant copyright. 126 Second, as to that "someone", s 157(3), whether having regard to the elements of s 157(3)(a) or (b), contemplates conduct on the part of a "licensor". That term is, as already mentioned, a defined term and, put simply (and without controversy in these proceedings) for present purposes, it suggests a body in the nature of a "collecting society" because it is only an entity or body having those particular characteristics that falls within the definition of the term "licensor" : see [17] of these reasons. The parties accept that CA is a licensor and a collecting society. 127 However, CA, is not the owner of the copyright in the subject matter in respect of which the applicants seek the grant of a licence to exercise the field of rights comprehended by the Proposed Licence in each case. Thus, the claim of the applicants is to a licence they say they require concerning acts engaging an exercise of particular rights vested in the copyright owner or owners set out in the Proposed Licence in each case, to be granted by CA, the licensor (on behalf of the owners of the copyright in the relevant works), irrespective of whether the owner or owners of the copyright in the relevant works have conferred on CA, as a matter of legality, the power or authority to act "on their behalf" in creating or granting a relevant right in anyone to do the relevant act, or exercise the relevant right, comprised in the copyright claimed by the applicants. 128 Third, the prima facie difficulty of seeking to obtain a grant of a licence of some of the acts comprised in the relevant copyright from CA on behalf of the owners of the relevant copyright in circumstances where CA does not have a conferral of any power, permission or authority to act on behalf of the owners (either directly or through CopyCo), in respect of the relevant acts, as an expression of the relevant rights in issue (owned by the upstream publishers), is sought to be answered, fundamentally, by three things. 129 First, the applicants say that there are no words of express limitation in s 157(3)(a) or (b) which have the effect of confining the scope of the licence (that is, the scope of the acts comprised in the relevant copyright and made the subject of a claim to a required licence), that may be brought before the Tribunal by a claimant so as to engage, subject to its terms, s 157(6B). 130 Second, the applicants say that to the extent that the Full Court's decision in PPCA is thought to analogically suggest that there is simply "no power" to make an order that an applicant be granted a licence, by a licensor, "in the terms proposed by the applicant", where the licensor does not have the power, permission or authority to act on behalf of the owners in respect of the relevant acts and rights asserted and claimed, the applicants make the following point. They contend that central to the reasoning in PPCA is the statutory imperative that a "licence scheme" (which does not apply here), by its very definition, contemplates a scheme formulated by licensors who are "willing" to grant licences in the relevant "classes of cases" (or the persons on whose behalf they act are willing to grant licences in the relevant classes of cases). Thus, the scope of the power under s 154(4) of the Act could not reach beyond the barrier of the rights the licensor (or owners) were willing to make the subject of licences in accordance with the scheme. They observe that any order had to engage a "licence scheme" exhibiting that central characteristic. The applicants say that there is no notion of "willingness" on the part of a licensor (or owner) in the statutory language of s 157(3) or s 157(6B) which operates to constrain the scope of the licence a person requires and which may be made the subject of an application to the Tribunal. Nor, they say, is there anything in the language of s 157(6B) that operates to constrain the reach of an order under s 157(6B)(b) in such an application under s 157(3), to grant a licence "in the terms proposed by an applicant", if the Tribunal is satisfied that the claim of the applicant under s 157(3) is "well-founded". 131 It necessarily follows, for the applicants, that particular acts comprised in the copyright that owners are not willing to grant others to exercise, and in respect of which no authority has been conferred, either directly or through an intermediary such as CopyCo, on a collecting society licensor, can properly be made the subject of a claim to the grant of a licence and an order that such a licence "be granted" to an applicant "in the terms proposed by the applicant". 132 Third, the applicants say that the purpose and object of the provisions of the Act in subdivision H of Division 3 of Part VI engaging the Tribunal's jurisdiction in regulating the approval of licence schemes and licences (ss 154-159), is to exercise some supervisory constraint upon the discretionary exercise of exclusive rights conferred on copyright owners engaging in such schemes or grants of licences, so as to counter-balance or constrain the monopoly or potential monopoly of collecting societies and their member owners in their licensing programs with users who require access to particular rights to engage in particular conduct, much along the lines of the discussion in Ch 11.04–11.11 and Ch 11.42 and following, in the CLRC Report, and as reflected in the speeches of the then Attorney-General, Mr N H Bowen, in relation to the Copyright Bill 1967 and the Copyright Bill 1968 in the House of Representatives. 133 I will return to these matters later in these reasons. 134 The Tribunal's power to make an order arising out of an application under s 157(3) is conferred by s 157(6B). For convenience, that section is set out again below: Order dealing with application under subsection (2) or (3) (6B) If the Tribunal is satisfied that the claim of an applicant under subsection (2) or (3) is well-founded, the Tribunal must either: (a) make an order specifying, in respect of the matters specified in the order, the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to the applicant; or (b) order that the applicant be granted a licence in the terms proposed by the applicant, the licensor concerned or another party to the application. 135 The scope of the orders capable of being made under s 157(6B) in an application under s 157(3) are also capable of being made in an application under s 157(2) which, as mentioned earlier, concerns the possibility of the grant of a licence in accordance with a licence scheme, but subject to the payment of charges or to conditions not reasonable in the circumstances. 136 Section 157(6B) provides that if the Tribunal is satisfied that the claim of an applicant under s 157(2) or s 157(3) is "well-founded", the Tribunal must do one of two things. The first of those is to make an order specifying, in the order, the charges, if any, and the conditions that the Tribunal considers reasonable in the circumstances in relation to the relevant applicant under either subsection. Section 157(6B)(a) seems to provide a remedial answer to a well-founded claim of an applicant under s 157(2) who seeks a licence in accordance with the scheme but contends that the charges and conditions to which that licence would be subject are not reasonable in the circumstances. 137 Similarly, s 157(6B)(a) seems to provide a remedial answer to a well-founded claim under s 157(3)(b) that a person requires a licence (where a licence scheme does not apply), and a licensor has "proposed" that "the licence" "should be granted", but subject to the payment of charges or to conditions that are unreasonable. 138 In both s 157(2) and s 157(3)(b), the licence "to do acts comprised in the [relevant] copyright" would not be in issue, if the reference in s 157(3)(b) to "the licence" is properly understood as a cross-reference to the licence the applicant claims to require for the purposes of the introductory words of s 157(3), and, in the case of s 157(2), it can only be a licence in accordance with the licence scheme. If, on the other hand, the reference to "the licence" in s 157(3)(b) is a reference to a licence proposed by a licensor but not necessarily the licence the applicant claims to require referred to in the introductory words of s 157, the acts comprised in the copyright the subject of the licence may be different as between an applicant and a licensor. 139 The remedial answer to the contested matters of charges and conditions is that the Tribunal can make an order specifying the charges, if any, and the conditions it considers reasonable in the circumstances concerning either the subsection (2) or the subsection (3) applicant. 140 The second of the two possible orders arising under s 157(6B), if the Tribunal is satisfied that an applicant's claim under subsections (2) or (3) is well-founded, is an order that the applicant be granted a licence in the terms proposed by the applicant, the licensor concerned or another party to the application: s 157(6B)(b). 141 As to an application under s 157(2), s 157(6B) seems to provide the Tribunal with the power to either specify in the order it makes, in respect of each of the "matters" specified in the order, the particular charges and conditions that the Tribunal considers reasonable once satisfied that the applicant's claim is well-founded; or, rather than specify the content of the charges and conditions in relation to the various matters, in the order, the Tribunal has power to order that the licence be granted in the terms proposed by the applicant or by the licensor or another party to the application. If the Tribunal is satisfied that the claim of an applicant under subsection (2) is well-founded, it is difficult to see, prima facie, how an order could be made that the applicant be granted a licence in the terms proposed by the licensor. However, the subsection seems to recognise that a licence might ultimately be proposed by a licensor or other party to the application (or, of course, the applicant) that reflects terms properly made the subject of an order by reference to the licence rather than specifying separately each and every charge or condition considered by the Tribunal reasonable in the circumstances. 142 Either way, the licence as to the "acts" comprised in the relevant copyright would be "in accordance with" the licence scheme referred to under that subsection. 143 As to an application under s 157(3), s 157(6B)(b) seems to also contemplate that if the Tribunal is satisfied that an applicant's claim under s 157(3)(b), that a licensor proposes that the licence "should be granted" but subject to charges and conditions that are "unreasonable", is well-founded, it must either specify the charges and conditions in respect of the relevant "matters", or order that the applicant be granted a licence in the terms proposed by the applicant, the licensor or another party. 144 The applicants contend that the central matter decisive of the present proceeding is the relationship between s 157(6B)(b) and s 157(3)(a). As to that matter, the contentions are these: (1) The applicants claim that they require a licence which involves a licence to do a range of identified acts comprised in the copyright in the relevant works and they contend that the licensor has failed or refused to grant that licence or to procure the grant of that licence. They say that recent amendments have been proposed to the scope of the licence and absent CA accepting that a licence as amended "should be granted", s 157(3)(a) is engaged. (2) Section 157(6B)(b) gives the Tribunal the power to order that the applicants be granted a licence (which, they say, is "undoubtedly" apt to pick up the licence referred to in the opening words of s 157(3)), in the terms proposed by each applicant, if the Tribunal is satisfied that the claim made under s 157(3)(a) is "well-founded". (3) Because the power under s 157(6B)(b) can only be exercised if the Tribunal is satisfied that the claim under s 157(3)(a) (that is, the engaged claim, leaving aside any question arising under s 157(3)(b)) is well-founded, the Tribunal will need to be satisfied that the refusal or failure to grant, or procure the grant, of the licence is, in the circumstances, unreasonable. (4) The applicants seem to accept that because CA has "proposed a licence" of certain acts comprised in the copyright in the relevant subject matter on particular terms, that s 157(3)(b) is also engaged. The acceptance of that proposition seems to accept that the reference to "the licence" in s 157(3)(b) is not necessarily a reference to the licence a person claims to require, referred to in the opening words of s 157, that is, a cross-reference to "a licence". On that footing, both s 157(3)(a) and (b) would be engaged. (5) Although CA contends that the power conferred under s 157(6B)(b) is confined in the sense that an order granting the applicant a licence cannot include any incident of the copyright comprised in the relevant work or subject matter that goes beyond the "mandate" or authority or power of the licensor, the applicants contend that there is no "inherent language" (in either s 157(3)(a) or s 157(6B)(b)) that seems "clearly to limit the Tribunal's power in that way. They say that the power to order the grant of a licence "in the terms proposed by the applicant" turns upon the Tribunal's state of satisfaction that the applicants' claim is well-founded, and a claim framed in terms of the language of s 157(3)(a) is not expressly confined in the way CA contends. (6) The applicants say that a strong "textual indicator" that suggests that the Tribunal's power is not confined as CA contends, is the inclusion in s 157(3)(a) of a licensor's "refusal or failure … to procure the grant of the licence". They say that "procure" is an "ordinary" word which means "obtain especially by care or effort; acquire; bring about" (Oxford English Dictionary), and it ought to be given its ordinary meaning in s 157(3)(a). Thus, the use of the phrase in s 157(3)(a) contemplates a situation where a licensor does not itself have the power or authority to grant a licence required by an applicant but the licensor can go to the copyright owner or owners or someone who does have "the rights" and "seek to bring about" the grant of the licence or "seek to have its own powers extended" so as to bring about the grant. They say that the use of the phrase "procure the grant" recognises, by the very nature of the language, that granting the licence is something the licensor cannot immediately do and requires the licensor to take some step to bring about the grant. Thus, the language is said to be apt to address a circumstance where the licensor does not have the power, authority or mandate to grant a licence in respect of the particular incidents of copyright the subject of the licence sought by the applicant. (7) The applicants say that CA's contention that "procure" in the context of s 157 and Part VI of the Act means or connotes a step the licensor is empowered or authorised to take under its mandate, takes the word beyond its ordinary meaning. (8) The applicants say that CA's contention that the only licence that can be the subject of an order under s 157(6B)(b) is a licence that engages incidents of the copyright falling within the licensor's mandate, leads to an incongruity that s 157(3)(a) and s 157(6B)(b) are to be construed as confined to the limits of the licensor's mandate even though a claimant would not necessarily know the limits of the licensor's mandate. (9) As to CA's contention that the applicants are adopting an inconsistent position by accepting that s 157 applies where the licensor is a collecting society acting on behalf of the copyright owners on the one hand, and denying, on the other hand, that the terms on which the licensor is appointed and authorised to act on behalf of those owners are relevant, and that those terms constrain the power to order a licence proposed by an applicant, the applicants say that there is no inconsistency in contending that a collecting society acts on behalf of the copyright owners within the limits of that authority, on the one hand, and contending, on the other hand, that the authority conferred on the collecting society does not constrain the meaning to be attributed to the text of s 157(6B)(b) and its relationship with s 157(3)(a), especially having regard to the use of the word "procure" in s 157(3)(a). (10) Put another way, the applicants say that there is no inconsistency in saying that the licensor acts on behalf of the copyright owners (whatever the limits of the mandate or authority might be) and contending that the text of s 157 "extends" to those circumstances where the collecting society does not have a mandate for all incidents of the copyright in the subject of the required licence (at the time of the claim or proposal by an applicant), but where the licensor can seek to procure, from copyright owners, a grant of the licence that includes those incidents of the copyright going beyond the then mandate of the licensor. (11) As to the strong "bargaining position" of a collecting society licensor, the applicants contend that once the owners of copyright organise themselves through such a licensing organisation as the grantor of licences, it gives the owners and the collecting society a strong bargaining position and that is the mischief which Part VI of the Act is directed to addressing. That purpose or object of Part VI is said to "guide" the proper construction of s 157 and support the construction contended for by the applicants. They say that, in the end, if the copyright owners elect to participate in arrangements for the granting of licences of acts comprised in the relevant copyright even if as to only particular acts, then "the price they pay" is that the arrangements for granting licences become subject to the supervision of the Tribunal through the mechanism of s 157 and that is "the basic point" they emphasise. (12) The applicants say that the copyright owners cannot limit the power of the Tribunal under s 157(6B)(b) by limiting the authority or power or mandate of the collecting society, and if the Tribunal's power is so limited, the copyright owners would simply have an "enhanced opportunity" to exploit their bargaining position (quoting references to the role of a bargaining position by Mr N H Bowen) and market power arising by reason of their exclusive rights. (13) The applicants also say that CA's contention that the particular bargaining power or (monopoly) market power of CA is extinguished, constrained or counter-balanced by potential rivalry between copyright owners, and as between the owners and CA(as CA only enjoys a non-exclusive right to grant licences), is not to the point on the question of construction of the text. They also say that the circumstances that particular owners could potentially compete with CA in the grant of licences does not mean that there is an absence of a risk that the bargaining power of CA might be exercised. They say that unless the publishers do "actively", in effect, compete with CA, then there is a risk of market power which s 157 seeks to constrain. (14) As to CA's notion that the construction contended for by the applicants gives rise to an "unworkable regime" because it means that once a copyright owner has appointed a collecting society to grant licences of, for example, an act comprised in the relevant copyright, the door is then forced open enabling the Tribunal to grant a licence as sought by an applicant in respect of each and every right comprised in the copyright in the relevant subject matter on the terms and conditions determined by the Tribunal, the applicants contend that the power of the Tribunal is only engaged once there is a well-founded claim of a refusal or failure to grant the licence or to procure the grant of the licence sought by an applicant, and that, in the circumstances, it is unreasonable that the licence should not be granted (s 157(3)(a)), or the licensor proposes a licence subject to charges or conditions (or both) that are unreasonable. The applicants say, in effect, that the controlling mechanism is whether the Tribunal can be satisfied, "in the circumstances", that it is "unreasonable" that the licence as sought should not be granted. (1) The applicants say that if the Tribunal is satisfied that the claim of an applicant is well-founded, that a licensor has failed or refused to grant the licence or has refused or failed to procure the grant of such a licence and that in the circumstances, it is unreasonable that the licence should not be granted, s 157(6B) is engaged and the Tribunal has power to order under s 157(6B)(b) that the applicant be granted a licence "in the terms proposed by the applicant" extending, as it does in this case, to a number of acts comprised in the copyright that CA does not have authority to confer by sub-licence and which lie within the exclusive rights conferred by the Act on the owners of the relevant works or other subject matter. Thus, it must follow on such a construction, that none of the owners of the copyright could complain that an applicant's exercise of rights comprised in the copyright is an infringement even though the licensor, as the grantor of the licence as required by the order, cannot actually confer such a licence of rights vested in the owners. 145 It is convenient at this point to note s 159(8) of the Act. That subsection addresses the topic of the effect of an order of the Tribunal in relation to licences. Subsections (1)-(3) address the effect of orders made under ss 154, 155 and 156. Subsections (4)-(6) address the effect of orders made under s 157 "specifying conditions and charges". Subsection (8) addresses an order under s 157 that a person be granted a licence. It provides that, in circumstances where the Tribunal has made an order under s 157 that a person be granted a licence "in the terms proposed by the applicant, the licensor concerned or another party to the application", the person to whom the licence is granted is "taken, for the purpose of proceedings for infringement of copyright, to have been granted the licence in those terms, and such a person, is liable to pay the owner of the copyright concerned the amount of any charges that would be payable if the person had been granted the licence in those terms" [emphasis added]. The applicants contend that s 159(8) is "very much a side issue" as to the scope of the operation of s 157 in the sense that the licence arises by operation of an order under s 157(6B)(b) without the "necessity for the parties thereafter to formally execute a licence".

The construction question 146 In attributing meaning to s 157, the Tribunal applies the principles discussed at [59]-[73] of these reasons and takes into account all of the submissions of the parties. Applying those principles, the Tribunal makes these observations. (1) The starting point is to recognise that s 157(3) addresses a claim by a person to require a licence in a case to which a licence scheme does not apply. In a licence scheme, a licensor formulates a scheme (by whatever taxonomic description) which sets out the classes of cases in which a licensor is willing (or persons on whose behalf the licensor acts, are willing) to grant licences in those classes of cases (and the charges and conditions to which the licence, granted in accordance with the scheme, would be subject). As already noted, the Full Court in PPCA construed the phrase "classes of cases" as concerned with the incidents of the copyright in the relevant subject matter brought, willingly, within the licence scheme. Thus, the licence scheme gives content to the term "licence" by identifying the acts comprised in the copyright which can be the subject of a licence in accordance with the scheme. (2) Section 157(3) is not concerned with such a construct, although s 157(3) engages a possibly unusual circumstance where a licence that would be granted in accordance with a licence scheme, would be granted subject to "conditions" by virtue of which "particular matters" would be excepted "from the licence" and a case relates to one or more matters falling within such an exception such that the case is deemed not to be a case to which the licence scheme applies, and thus such a case, seems to fall within s 157(3). That is not this case. However, the statutory text is not to be construed only within, or by reference to, the boundaries of the facts immediately thought to engage the relevant section. (3) Section 157(3) addresses a person's claim to require a licence where no licence scheme applies defining the incidents of the copyright the subject of the licence. In order to derive the content of the statutory term "licence" in s 157(3), the subject of a person's claim to require a licence, the claimed licence must be a licence granted by someone (a licensor) by, or on behalf of, the owner or owners of the copyright in a work or other subject matter to do an act comprised in the copyright. Thus, the content of the licence the subject of a claim under s 157(3) is to be found, in circumstances where the licensor is a collecting society acting on behalf of the owners of the copyright, in the scope of the authority, permission or power conferred on the licensor by the owners to grant licences of acts comprised within the rights subsisting in the relevant copyright. (4) The so-called mandate of the licensor might be conferred upon the licensor directly by some form of licence, conferring authority to grant sub-licences of particular rights, or the authority might be conferred by an intermediary licensor deriving authority to grant a licence to the collecting society "licensor" from the upstream owners. Either way, the content of the licence, the subject of a claim, is determined by recognising that a collecting society licensor which is not the owner (or prospective owner) of the copyright in the subject matter, but rather a body that acts "on behalf of" the owner or owners of the copyright, can only grant a licence, on behalf of the owners of the incidents of copyright, that falls within the authority conferred on the licensor. (5) Once the licensor engages or purports to engage with a claim to licence acts comprised in the relevant copyright beyond the scope of the authority it holds, it no longer acts on behalf of the owners of the copyright as to those acts. It simply acts beyond power. (6) Of course, a person might well make a claim to require a licence, in a case where no licence scheme applies, which comprehends many (perhaps all) acts comprised in the relevant rights in the copyright subsisting in the relevant subject matter, but the subject matter of s 157(3) is not such a licence unless the licensor is the owner of the bundle of rights comprised in the copyright, or the licensor has authority from the owners of the copyright to act on their behalf in respect of the acts the subject of the required licence. (7) In other words, the statutory constraint on the subject matter of s 157(3) is determined by recognising, first, that the claim to a required licence concerns a case to which a licence scheme does not apply and, second, that the claim can only concern a claim to require something the Act defines as a "licence" which is a licence, permission or authority, granted by the owners or granted by someone acting on behalf of the owners to do the acts comprised in the copyright the subject of the claimed licence. (8) It is essential to the statutory structure and subject matter of s 157(3) that the licensor collecting society acts on behalf of the copyright owners. The licensor is not just any collecting society, but rather a "licensor" that engages the "claim" for the required "licence". Thus, it is incorrect to describe a collecting society licensor as "acting on behalf of the copyright owners" in relation to rights falling outside the scope of its mandate or authority. In order to engage a licence of rights going beyond the boundaries of the authority conferred on the licensor that a person claims to require, it would be necessary to find in the text of s 157, or in the Act otherwise, an express conferral of power to include, within the licence granted to an applicant by a licensor, by order of the Tribunal, rights going beyond the scope of the licensor's authority. (9) The applicants find that conferral in the combination of the power contained in s 157(6B)(b) to make an order that the applicant be granted a licence "in the terms proposed by the applicant", and s 157(3)(a), which refers to a licensor's refusal or failure "to procure the grant of the licence" which is said to recognise, by the very nature of the language used, "to procure", that although the licensor's "immediate" authority might be limited, a collecting society licensor conferred with authority to act on behalf of the owners as to some acts comprised in the relevant copyright or some rights, might well be able to engage with the owners on a wider basis (in the sense identified by the applicants at [144](6) of these reasons), providing a textual foundation for an order going beyond the limits of the licensor's immediate authority. I will return to that matter shortly. (10) As to the question of context concerning Part VI and Subdivision H of Division 3 of the Act, the Tribunal respectfully accepts the observations of the Full Court in PPCA at [145] quoted at [101] of these reasons. It should also be noted that the definition of "licensor" introduced into the Act by the 2006 Act sought to limit the licence schemes and licences that could be the subject of an application to the Tribunal, to licence schemes engaging a licensor as defined (formulating a licence scheme reflecting the elements earlier described), and licences engaging a licensor as defined, thus confining both matters "to those that are collectively administered": see [91] of these reasons. Thus, the limits of the authority of the collecting society to collectively administer a licence scheme (those rights willingly brought within a scheme) and collectively administer licences (those licences granted by or on behalf of the owners to do an act comprised in the copyright) are critical to the limits of that which may be the subject of an application to the Tribunal. (11) As to the phrase "the licensor has failed or refused … to procure the grant of the licence", the phrase, as mentioned earlier at [113] of these reasons, is mentioned in s 157(1) in the context of a licence scheme where the licensor has refused or failed to procure the grant of a licence to the claimant in accordance with the scheme. In s 157(1) "procure" clearly means that the licensor has failed to put in place a licence capable of being granted within the boundaries of the scheme (because it must be a licence in accordance with the scheme), and within the authority of the licensor to effect, as the licensor "operating the scheme". CA contends that, contextually, where s 157(3) uses the phrase "the licensor has refused or failed to procure the grant of the licence", the word "procure" ought to be understood as having a consistent meaning in s 157 with the result that in s 157(3), in conjunction with the notion that a "licence" must be a licence granted by or on behalf of the owners of the copyright (collectively administered) to do an act comprised in the copyright, the word "procure" must mean giving effect to something falling within the capability or authority of the licensor under the powers or authority conferred on the licensor by owners (whether directly or by an intermediary dealing with upstream owners), to effect; or taking a step within such authority. I accept that CA's submission on this question is correct and is to be adopted. (12) It follows that the licence contemplated by s 157(3) is a licence falling within the scope of the power or authority a licensor is capable of granting or in respect of which a licensor is capable of taking a step, contemplated by or within the power or authority of the licensor under the arrangements conferred upon the licensor for the collective administration of the relevant rights or acts. Section 157(3) does not extend to a claim, made of a licensor, to a licence engaging acts outside the boundaries of the conferred authority of the licensor and engaging what might be described as a course of persuasion or advocacy for an extension of the authority of the licensor to seek to enable a licence to be granted under a broader conferral of authority which may or may not be granted as a result of such a process. (13) The power conferred on the Tribunal by s 157(6B) in its relationship with s 157(3)(a) is a power to order that any acts within any of the incidents of the relevant copyright falling within the authority of the licensor, be made the subject of a licence granted to an applicant, "in the terms proposed by the applicant", subject to the Tribunal being satisfied that the claim as framed is well-founded and the power to make an order is engaged. It is only those acts within those rights that can be properly described as a licence that the licensor has refused or failed to grant or refused or failed to procure, for the purposes of s 157(3)(a). The power to make such an order does not carry with it a power to order that the applicant be granted a licence by the licensor that goes beyond the authority conferred on the licensor to grant licences of rights or acts. As a matter of construction, an obligation requiring a licensor collectively administering licences (to which a licence scheme does not apply) to seek to obtain a right to grant a licence going beyond the authority conferred upon the licensor, coupled with a power to order that a licence be granted going beyond the authority conferred upon the licensor, would be unlikely to be found in a phrase in a subparagraph of a subsection of a section which is addressing voluntary licences in a Part of the Act providing regulatory supervision by the Tribunal of voluntary licences. (14) Assuming that the grant is within power and assuming that the relevant state of satisfaction is reached as required, the Tribunal might choose not to grant a licence "in the terms proposed by the applicant", but rather, elect to specify the "charges", if any, and the "conditions" that the Tribunal considers reasonable in the circumstances of the s 157(3) applicant (or a s 157(2) applicant). Thus, whether the claim arises under s 157(6B)(a) or (b), the question for the Tribunal is whether the licence is to be granted "in the terms" proposed by the applicant (or by the licensor or another party to the application as proposed by either of them) containing the "licence" of the relevant acts and terms as to "charges" and "conditions"; or, whether it elects to specify the charges and conditions it considers reasonable in the circumstances of the particular applicant. An order under s 157(6B)(b) may be a convenient shorthand way of determining, by order, the terms of the licence to be granted. Section 157(6B)(a) provides for particular charges and conditions thought by the Tribunal to be reasonable in the circumstances of the relevant applicant, to be specified in the order after the Tribunal has undertaken an analysis of the charges and conditions to decide which of them are reasonable: see paras 11.14-11.16 (Item 12) of the Explanatory Memorandum ("EM") for the Copyright Amendment Bill 2006 in the House of Representatives. (15) Because the power of the Tribunal under s 157(6B)(b) to order that the applicant be granted a licence in the terms proposed by the applicant is not engaged unless the Tribunal is satisfied that the claim under s 157(3) is "well-founded", a claim for a licence, to be granted by a licensor, to do acts comprised in the relevant copyright which goes beyond the limits of the acts or incidents of the relevant copyright falling within the authority conferred on the licensor, could not, to that extent, be "well-founded". (16) The ultimate point then is that the Tribunal is not conferred with a power to order that a licence be granted to a person who claims to require a licence which goes beyond the limits of the permission, power or authority conferred upon the licensor in the collective administration of rights the subject of the licensor's authority, to the extent that the licence goes beyond the limits of the licensor's authority. CA accepts that a claim by the applicants to require a licence from CA that reflects the acts contained in the CA Licence, as amended by the Additional Rights, can properly be the subject of an order under s 157(6B) according to its terms. (17) Considerable emphasis has been placed by CA upon the meaning of the word "case" in s 157 and the observations of the Full Court in PPCA on the meaning to be attributed to the phrase, "classes of cases" in the definition of "licence scheme", and the relationship between the powers conferred on the Tribunal under s 154(4) of the Act on a reference under s 154(1), having regard to the essential characteristics of a licence scheme. Although the Full Court regarded that phrase as engaging, by reason of the definition of the term "licence scheme", the "incidents of copyright" willingly brought within the scheme, I do not accept that the term "case" in s 157 plays an analogous role to that played by the phrase "classes of cases" found in the definition of licence scheme which aided the proper construction of the powers conferred under s 154(4). The relevant definition of importance for the purposes of s 157(3), and its relationship with s 157(6B), is the term "licence" in s 136(1), which is bound up with the notion of a licence granted, by or on behalf of, the owner or prospective owner of the copyright in a work or other subject matter, to do an act comprised in the copyright. It is that definition which plays an important part in engaging the scope of the authority of the licensor and which aids the proper construction of the power of the Tribunal to make orders under s 157(6B) of the Act. The phrase "classes of cases" is confined to the proper construction of one of the essential characteristics of the definition of a licence scheme. Also, the phrase "a case to which a licence scheme applies" and the phrase "a case to which a licence scheme does not apply" are given a particular meaning for the purposes of Part VI. In s 157, the term "case", in the context of those phrases, ought to be understood as meaning: "A person who claims in a case where the contention is that a licence scheme applies" and; "A person who claims that he or she requires a licence in a case where the contention is that a licence scheme does not apply". (18) The applicants have placed considerable emphasis, in attributing the meaning they contend for in construing s 157 (and particularly s 157(3) and the powers conferred on the Tribunal to make orders under s 157(6B)), on the regulatory role of the Tribunal in exercising supervision over licensors collectively administering either a licence scheme, or licences, where a collecting society is administering the rights of copyright owners who have elected to gather together to appoint a collecting society to licence their rights, or some of their rights, comprised in the relevant subject matter. They say that the role of the Tribunal is one of constraining the exercise of the exclusive rights conferred on the copyright owners on the footing that the statutory conferral of a bundle of exclusive rights engages power, and perhaps market power, enabling the owners to extract monopoly rents by setting the scope, limits, terms and conditions, and charges that, in the circumstances in relation to an applicant, are determined by the Tribunal to be not reasonable. Thus, they say that if the Tribunal is satisfied that an applicant's claim is "well-founded" within the integers of s 157(3), Part VI, taken together with the text of s 157, enables a person seeking a licence of particular acts comprised in the copyright, on reasonable terms, to apply to the Tribunal to exercise oversight of the failure or refusal of the licensor to grant, or to procure the grant of, a particular licence, and to determine the charges and conditions of the grant which, in the view of the Tribunal, are reasonable in the circumstances of the applicant. Thus they say that the meaning to be attributed to s 157, in the context of Part VI, is that the power to make orders granting a licence goes beyond the limitations in the conferred power or authority of the licensor and that once owners elect to collectively act through a body such as CA, they submit themselves to the statutory powers regulating exercises of licensing power. Thus, the applicants say that the text and context of s 157 ought to be construed widely and purposively consistent with the regulatory role of the Tribunal, otherwise the role of the Tribunal is diminished. As to these matters, it is true to say that the rights conferred by the Act on the copyright owners are exclusive rights and one measure at least of the reach of those rights is the statutory and jurisprudential conception of infringement. It may also be, in respect of certain subject matter, and the rights comprised in that subject matter, that the owners of the copyright find themselves in a position where they can exert market power either by asserting constraints upon others doing acts said to fall within the relevant rights, or by granting licences to do acts falling within those rights, on terms and conditions that extract unreasonable rents, rates, charges or conditions or at least are perceived by some to do so. The role of the Tribunal, relevant for present purposes, is to consider applications brought to it in relation to licences within the scope of the authority of the licensor collecting society and determine whether a licence is to be granted to an applicant, and if so, a licence of which acts or rights (remembering that the limit of the acts that might be the subject of such an order is the limit of the authority of the licensor but recognising that the Tribunal has power to order a licence of acts to the full limit of the licensor's authority), and on what conditions and subject to what charges. It is true to say that the Tribunal exercises regulatory oversight of a licensor and, in that sense, the owners for whom the licensor acts, but only within the constraints described above because they are the statutory constraints. The power of the Tribunal to make orders within those boundaries is a power designed to counter-balance unreasonable rent taking and unreasonable charges and conditions. An important element of that power is a proper understanding of the matters that fall within the conception of a "condition" for the purposes of s 157(3), s 157(6B) and Part VI of the Act. That matter is discussed later in these reasons.

The questions 147 It is now necessary to consider the six questions to be answered by the Tribunal. The questions are these: Question 1 In circumstances where CA has proposed the CA Licence, then, with the exception of charges and conditions which may be specified or varied by the Tribunal, is the form of the licence that may be ordered by the Tribunal under s 157(6B) limited to the terms of the CA Licence? Question 2 If the answer to Question 1 is "yes", which terms of the CA Licence are neither charges nor conditions and thus outside the power of the Tribunal to vary? Question 3 In an application brought under s 157(3), does the Tribunal have the power: (a) under s 157(6B)(b) of the Act, to order that the Applicants be granted licences on all the terms of the Proposed Licences; and/or (b) under s 157(6B)(a) of the Act, to make an order specifying the charges, if any, and conditions that it considers reasonable in the circumstances in respect of each of the Proposed Licences? Question 4 If the answer to Question 3(a) is "no", which (if any) of the following rights or terms in the Proposed Licences are beyond the power of the Tribunal to order: (a) the Isentia User Copying Right; (b) the Searchable Archive Right; (c) the Excluded Works Term; (d) the Downstream Communication Right; (e) the External Sharing Right; (f) the Downstream Storage Right; (g) the countries comprising the Territory in Isentia's Proposed Licence other than on the terms of the CA Licence. Question 5 If the answer to Question 3(b) is "no", with respect to which (if any) of the rights and terms referred to in Question 4 is the Tribunal not empowered to make an order pursuant to s 157(6B)(a)? Question 6 Do the answers to Questions 3, 4 and/or 5 change in circumstances where: (a) CopyCo is authorised by the owners of the relevant copyright to grant licences of the rights in the Proposed Licences referred to in Question 3, but has not authorised CA to grant licences of those rights to MMOs; or alternatively, (b) CopyCo is not authorised by the owners of the relevant copyright to grant licences of the rights in the Proposed Licences referred to in Question 3 to MMOs. 148 Before answering those questions, it is convenient to recall the particular acts falling within the reproduction right and the communication right that the applicants claim to require by licence from CA, but which fall outside the authority of CA to grant, either because CopyCo has not conferred the authority on CA, or CopyCo itself does not have authority from the copyright owners (the publishers) to confer authority on CA to grant sub-licences to MMOs. They are these. 149 First, communicating the work to customers of an MMO by communicating a link to the Licensed Work allowing a customer to access the work behind a publisher's paywall where the customer has not subscribed for access to such works through the publisher's website. The obligation the applicants seek to obtain from CA is a best endeavours obligation to ensure the customer will enjoy that right: the Isentia User Copying Right; the Streem and Meltwater Copying Right; Cl 22(a), SOAF. 150 Second, communicating to customers any and all copies of Licensed Works, by making those works available through a searchable archive located in a secure portal containing the works for up to twelve months from the date copied, communicated or scraped: the Searchable Archive Right; Cl 22(b), SOAF. 151 Third, authorising MMOs to permit their customers to copy and communicate to nominated users, portions of scraped copies of Licensed Works and copies of Licensed Works, by means of a downstream licence in favour of MMO customers: the Downstream Communication Right; Cl 22(c)(i), SOAF. 152 Fourth, in the case of Isentia and Streem (and perhaps also Meltwater), the act of enabling the customer of an MMO to share access to a licensed work with particular service providers to the customer, where the service providers are of a particular kind: the External Sharing Right; Cl 22(c)(ii), SOAF. 153 Fifth, enabling Isentia to store a portion of a scraped copy of a Licensed Work, or a copy of a Licensed Work, without limiting the form of storage to an email, on a database or intranet and excluding any storage in any other digital form: the Downstream Storage Right; Cl 22(c)(iii), SOAF. 154 Sixth, in the case of Streem and Meltwater, the Downstream Unlimited Storage Right; Cl 22(c)(iv), SOAF. 155 Seventh, a limitation on the right of major mastheads to withdraw their Licensed Works from the licence granted to the applicants during the period of the licence, except where the publisher ceases to publish the publication or where Isentia agrees in writing to the withdrawal: the Excluded Works Term; Cl 22(d), SOAF. 156 Eighth, in the case of Streem and Meltwater, the Adaptation Right, Cl 22(e), SOAF. 157 As to Question 1, if the acts the subject of the licence recited in the CA Licence, supplemented by the Additional Rights, correctly identifies the limits of the authority conferred on CA to act on behalf of the owners of the copyright in the relevant subject matter, the power of the Tribunal under s 157(6B) is limited to making an order by which CA grants a licence to the applicant, on behalf of the owners, to do only those acts, or acts not beyond those acts. If the acts described at [149] to [156] of these reasons do not fall within the authority of CA, the Tribunal does not have the power to order that the grant of a licence extend to those acts. 158 As to Question 2, the Tribunal has the power to make an order specifying (in respect of the "matters" specified in the order) the "charges" and the "conditions" that the Tribunal considers reasonable, in the circumstances in relation to each applicant, or, if thought convenient, order that a licence be granted in the exercise of the power under s 157(6B)(b). Sections 157(3) and 157(6B) recognise three statutory things: a "licence", which is the notion of a licence or permission to do particular acts comprised in the copyright in question the subject of the grant or, put another way, the "incidents of the copyright" a person is licenced to do or exercise by the grant; the notion of "charges"; and the notion of "conditions". Section 157(6B)(b) also refers to "terms proposed" which seems to refer to all three, although the licence cannot go beyond the limits of the licensor's authority, which has been the central point of CA's submissions in this proceeding. A reference to "conditions" in Part VI of the Act is a reference to "any conditions other than conditions relating to the payment of a charge [emphasis added]": s 136(2)(a). 159 Section 136(2)(a) does not provide that a reference to "conditions" is a reference to any conditions other than conditions relating to the payment of a charge "or, other than, conditions relating to the licence". Sections 157(3)(b) and 157(6B)(a) (and necessarily s 157(6B)(b)) recognise that the grant of a licence is likely to be made subject to the payment of charges or to conditions (and most likely both, for all the obvious reasons). Why does it follow that a reference to "conditions" in Part VI is a reference to conditions excluding any conditions that concern or relate to or engage with the licence of acts comprised in the copyright the subject of the licence? If an instrument contains a condition which purports to operate on the footing that it establishes requirements, entitlements, or obligations such that the licence extends beyond the authority of the licensor collecting society, the Tribunal has no power to specify such a condition (as might, for example, be sought by an applicant), or to grant a licence under s 157(6B)(b) in terms containing such a condition for the reasons earlier mentioned. If, however, the condition relates to aspects of the acts the subject of the licence, it nevertheless may be properly understood, subject to characterisation of the clause, as a condition in respect of which the Tribunal has the power to specify "the conditions that [it] considers reasonable in the circumstances in relation to [each] s 157(2) or (3) applicant" for the purposes of s 157(6B). 160 The Tribunal does not accept that the power of the Tribunal is confined under either s 157(6B)(a) or (b) to specifying "charges", on the one hand, and "conditions" that have nothing whatsoever to do with any aspects of the acts comprised in the relevant copyright the subject of the s 136(1) "licence", or their exercise, on the other hand. 161 A "condition", for the purposes of Part VI and thus s 157, is merely a "stipulation" or "something upon the fulfilment of which, something else depends": Oxford English Dictionary. There is nothing expressly in the text or in the context of s 157(3) or s 157(6B) that suggests that the stipulation, or the relevant something, cannot address an aspect of an act comprised in the copyright the subject of the licence such that a clause of the relevant instrument stipulating matters so related, can no longer be characterised as a condition for the purposes of ss 157(3) or 157(6B) and therefore beyond the power of the Tribunal to determine or vary or alter or specify as the Tribunal considers reasonable in the circumstances of the applicant. What a condition clearly cannot be, is a stipulation or something relating to the payment of a charge: s 136(2)(a). 162 It is now necessary to examine each clause of the CA Licence. The examination of the relevant clauses are set out in the confidential schedule as the CA Licence is marked as a confidential document. 163 As to all of the matters described as either fees and charges or conditions, as described in the confidential schedule, the Tribunal has power to make an order under s 157(6B) specifying relevant matters it considers reasonable in the circumstances in relation to each applicant. What is, or is not relevant, in the circumstances in relation to each applicant is ultimately a matter of evidence. 164 As to Question 3, if each Proposed Licence purports to provide for the grant by CA, on behalf of the copyright owners, of a licence to do acts reaching beyond the limits of the authority of CA to grant licences of acts comprised in the copyright, neither s 157(6B)(a) nor s 157(6B)(b) confers power on the Tribunal to grant a licence extending to such acts. 165 As to Question 4, the applicants seek the grant of a licence from CA (acting on behalf of the owners), which grants the applicants a licence to do the things described at (a) to (g) of Question 4. The applicants accept (by the SOAF) that CA does not have the authority of the copyright owners either directly or from CopyCo (as non-exclusive licensee of the owners) to grant those "rights", so described. That would be the end of the matter if those "rights" are properly characterised as acts comprised in the copyright in the relevant subject matter. A question arises, however, as to whether the subject matter of each so-called "right" recited at (a)-(g) in Question 4 is truly an act comprised in the copyright (beyond power if beyond CA's authority) or something which is properly characterised as a description of a "condition" of the grant of the licence to do an act comprised in the copyright in the relevant subject matter in respect of acts which do fall within the limits of the grant reflected in the CA licence amended by the Additional Rights. If an item at (a)-(g) is, in truth, a stipulation sought to be imposed as a condition of a grant within CA's authority, an order that such a "condition" be specified is at least within the power of the Tribunal and the question is whether specifying a condition in the terms sought is "reasonable" in the circumstances of the relevant applicant. If, on the other hand, each item at (a)-(g) is characterised as a proposal for an expansion in the acts comprised in the copyright the subject of the licence, beyond the authority of CA, the items in each case are beyond power. 166 It is now necessary to characterise each of the Question 4 items. Those matters are addressed in the Confidential Schedule. 167 As to Question 5, the position does not change in relation to each of the matters the subject of Question 4, for the purposes of s 157(6B)(a) of the Act. 168 As to Question 6, the answers to Questions 3, 4 and 5 do not change depending upon whether CopyCo is, or is not, authorized by the copyright owners to grant licences of the rights in question. The question relevant to s 157(3) and s 157(6B) is whether CA has the relevant authority. I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Determination of the Tribunal constituted by the Honourable Justice Greenwood (President).

Associate: Dated: 15 July 2019