One amendment to the EP&A Act not dealt with by the Planning Circular PS15-004 addresses the long standing issue concerning the potential for Councils to breach copyright by making information available to the public.
The new s158(1A) provides that the Regulations may require a person who is entitled to copyright in a document to give a council a licence to use the copyright material for the purposes of the EP&A Act. The section provides as follows:
(1A) The regulations may require a relevant person who is entitled to copyright in a document that is part of a planning matter to give (in the planning matter or otherwise) a licence to the State or a council to use the copyright material for the purposes of this Act. The regulations may also require a relevant person who is not so entitled to that copyright to give a warranty (in the planning matter or otherwise) that the relevant person has a licence to so use the copyright material from the person who is entitled to copyright in any such document.
However, this provision is not yet in force and no such Regulations have yet been made.
Section 158A(1) already provides that a “relevant person” (not being entitled to copyright) (such as an applicant) indemnifies all persons using a document that is part of a “planning matter” for the purposes of the EP&A Act against any claim or action for breach of copyright.
Sections 158(2) and (3) set out what constitutes a “planning matter” (which includes a DA and accompanying documents, an EIS, planning proposal and planning agreement) and when a document is part of a planning matter.
While the new s158(1A) provides additional protection to local councils, it is still arguable that in fulfilling its obligation under the Government Information (Public Access) Act 2000 to make certain documents available to the public unless there is an overriding public interest against disclosure, a council could be in breach of copyright because s158(5A) only applies to use of the document “for the purposes of this Act”.
Note: This information is not to be relied upon as legal advice.