THE UNIVERSITY OF AUCKLAND & ors v COPYRIGHT LICENSING LTD [2014] NZHC 2281

THE UNIVERSITY OF AUCKLAND & ors v COPYRIGHT LICENSING LTD [2014] NZHC 2281 [19 September 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-0285[2014] NZHC 2281UNDER THE COPYRIGHT ACT 1994, SECTION224AND IN THE MATTER OF AN APPEALBETWEEN THE UNIVERSITY OF AUCKLAND,THE UNIVERSITY OF WAIKATO,MASSEY UNIVERSITY, VICTORIAUNIVERSITY OF WELLINGTON,LINCOLN UNIVERSITY, THEUNIVERSITY OF CANTERBURY, THEUNIVERSITY OF OTAGO AND THEAUCKLAND UNIVERSITY OFTECHNOLOGYAppellantsAND COPYRIGHT LICENSING LIMITEDRespondentHearing: 18 September 2014Counsel: J Katz QC for AppellantsA Brown QC for RespondentJudgment: 19 September 2014JUDGMENT OF FOGARTY JThis judgment was delivered by me on 19 September 2014 at 4.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors:Melanie Johnson, Legal Counsel, University of Auckland, AucklandJames & Wells, AucklandCopy to:J Katz QC, AucklandA Brown QC, Auckland[1] Copyright Licensing Ltd (CLL), the respondent in the High Court, seeks leave to appeal to the Court of Appeal against the judgment of this Court given on 15 May 2014 (judgment).1 Section 67 of the Judicature Act 1908 makes provision for the High Court to grant leave.[2] Counsel agreed that the principles governing a grant of leave were summarised by the Court of Appeal in Snee v Snee.2[22] To summarise, for leave to be granted pursuant to s 67, the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the Court system and to the parties, and the delay involved in the further appeal. Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.[3] To my mind the ratio of the case fell out of my interpretation of the term"licensing scheme" as defined in s 2 of the Copyright Act 1994.3 The critical reasoning in the judgment follows in paragraphs [28], [29] and [30]. They can be summed up in this way: it is not possible to have a licensing scheme with only one class.[4] I held that:[32] There is only one set of licences proposed here, with identical terms. They are not proposed to be differentiated further into separate classes. For this reason, I conclude that CLL has in fact referred to the Tribunal the terms upon which it proposes to grant individual licences to each of the universities and thus it is a reference under s 157(1). It is not a licensing scheme, as defined in s 2, so s 149 is not engaged.[5] This analysis does not depend on the facts beyond the two facts contained in the first two sentences of paragraph [32]. For these reasons I am of the view that the appeal raises a question of law rather than fact.1 The University of Auckland & Ors v Copyright Licensing Limited [2014] NZHC 1015.2 Snee v Snee [2000] NZFLR 120 (CA) at [22].3 See paragraph [13] of the judgment under appeal.[6] I agree it is capable of bona fide and serious argument. The decision itself reverses an interpretation of the Act of an expert Tribunal, the Copyright Tribunal.[7] This is a statute in the public interest. Mr Brown QC has filed an argument indicating that it has ramifications beyond the dispute between these parties. I do not need to detail that. The only matter that concerned me was whether or not pursuit of this appeal would outweigh the cost to the parties and the delay in progressing resolution of the dispute between these parties.[8] Mr Brown advised that as a result of the High Court decision the dispute had been re-pleaded. The parties have a two-day fixture commencing on 1 October 2014, on discovery, before the Tribunal.[9] As to the Court of Appeal, the parties have already applied for a fast-track process.[10] Mr Katz QC endeavoured to argue that the case was factual inasmuch as it had considerable consequences and there were likely to be parties seeking to intervene in the Court of Appeal.[11] Resolution of disputed points of law very often have practical consequences. That is one of the reasons for granting leave, particularly on a question of law to the Court of Appeal.[12] An examination of the consequences does not in my respectful view broaden the interpretation point.[13] The appellants wish to cross-appeal on the AVCOS Point.4 This Point is discussed in the High Court judgment in paragraph [9] and [18]. As the case was argued before me in the High Court I had been under the impression that the dispute was intended by the Universities to go to the Court of Appeal in any event in order to challenge the interpretation of the Act in paragraphs [29] and [30] of AVCOS.4 Audio-Visual Copyright Society ltd v University of Auckland [2003] 1 NZLR 417 (CA) (AVCOS)[14] Allowing the cross-appeal may have the effect of delaying the hearing of the Court of Appeal. This is because as a consequence of pursuing this cross appeal counsel for the Universities is going to request a Full Court of the Court of Appeal. If that request is granted there may be a delay assembling a Full Court. That is a consequence obviously considered acceptable by the party seeking the cross-appeal. CLL does not oppose the cross-appeal.[15] Accordingly, leave is granted to appeal the decision of the High Court and to cross-appeal on the AVCOS Point.[16] I see the appeal being on a question of law: whether you can have a scheme with only one class? To which I answered "no". Mr Brown, however, formulated three questions:1. The first question is whether the document filed by CLL is:(a) A proposed licensing scheme as defined by ss 2 and 148 of the Act so that s 149 is engaged; or(b) A reference of proposed individual licences to each of the universities and thus a reference under s 157.2. The second question, which is directly related to the first, is whether a licensing scheme can comprise a single class of case. This is purely a question of law.3. The third interrelated question (also purely of law) is whether the context allows the application of s 33 Interpretation Act 1999 to thedefinition of "licensing scheme" in s 2 Copyright Act.[17] Counsel agreed that there is no obligation on the High Court to state or otherwise resolve the points to be taken on appeal. Section 67 does not confine appeals to questions of law. It is not necessary to engage on the question as to whether the appeal might raise some question of fact as well as law.[18] The respondent in the High Court has leave to appeal the decision of the High Court and the appellants in the High Court have leave to cross-appeal on the AVCOSPoint.[19] By agreement, costs are reserved.