I’ve blogged here, and more extensively here, about a case before the Copyright Tribunal, in which CAL and the Schools are seeking a determination on how much schools should pay for ‘electronic uses’ of copyright material. I’ve been concerned (amazed, appalled) by one of the arguments being made in the case: that where a teacher tells a student to view a website (yes, a freely available, open access website) there should be a payment to copyright owners. I’ve pointed out at length why I think this is a simply unsustainable argument. Now we have a Tribunal decision on what should be done pending determination of that argument.

CAL and the schools are considering whether that separate, legal question (and some other legal arguments) should be referred to the Federal Court for determination.

But that leaves open a question: what to do in the meantime? There’s an ‘electronic use survey’ going on at the moment – should questions be asked about ‘website viewing’, even in the absence of a decision on the law, so some data can be collected?

The Tribunal has decided no: for three reasons:

  1. The question was so vague and general it couldn’t provide meaningful data – following detemination on the legal questions, it would have to be refined;
  2. There should be as few revisions of the survey questions as possible (for the benefit of school staff)
  3. There would be no real prejudice to the applicant arising from delay.

The decision really says nothing about the legal arguments (as is, of course appropriate, while federal court referral is in question). (Hat tip: Starkoff).