So CAL has had a win in the High Court. In Copyright Agency Limited vs The State of NSW [2008] HCA 35, a unanimous High Court overturned the Full Federal Court’s ruling that Lands and Property Information (formerly the Land Titles Office), part of the NSW Department of Lands, does not have an implied license extending to allow the LPI to scan copies of survey plans, lodged with the office as a necessary element in registering title to land, and pass copies on to LPI staff, government agencies, councils, relevant authorities, information brokers and members of the public. One thing we don’t yet know is how much the NSW government will have to pay. The use will still fall within the government’s statutory license (Div ) – which means the government can make the copies but must pay equitable remuneration, to be determined by the Copyright Tribunal. This judgment presumably means the matter goes back to the Tribunal for determination.

[UPDATE: Catherine Bond has two long and interesting posts at House of Commons: Part 1 (Can’t the government just legislate to allow them to do it free?), Part 2 (but the Constitution!). Inchoate responds here.Nick Gruen has an AFR op-ed, which is re-produced on Club Troppo here – referring to Fitzgerald’s and Anderson’s (pre-High Court decision) article here.]

On one view, this is copyright run a little mad. It really isn’t the least bit arguable that surveyors require payment, or royalties, from the government in order to do the work of drawing up these plans. Presumably, they are paid when they do the surveying work. They’ve not been paid in the past. They are not paid royalties in many other comparable countries. Any money that comes this way is, at least on some interpretations, a windfall profit: profit that was not expected, and is not likely to have any social benefits in terms of increased quality or quantity of surveyors’ plans.

Obviously, CAL’s response to such an argument would be that in fact, a result where the government must pay is simple justice. After all, the government is paid for the digital copies of the plans by information brokers. Since that money is being made ‘off the back’ of the surveyors who actually did the work of drawing up the plans, surely they should get a cut, right? It’s only fair. The value of the thing being sold was created by them, right?

Can we think that through for a moment though? Is the value in individual surveyors’ plans? Or is it in the collection of all the surveyors plans? If the government, say, stopped selling the plans, would the information brokers go to all the surveyors to get copies from them and pay them? Not likely. The government’s actions do not, it seems to me, deprive the surveyors of a market or opportunity for profit. Again, we come back to the idea of windfall.

But surely, you might say, the money is also a windfall to government? After all, the government doesn’t really do any work (beyond scanning) to create this valuable thing – it is the surveyors who do that work. So if anyone should profit from the windfall created by the fact that information brokers are willing to pay for this info, it should either be the surveyors – or at least, the surveyors and government together. Simple justice, right?

But think about that for a minute. Presumably the LPI is not taking this as profit to be distributed amongst their staff. Presumably,the economic benefits that come from selling the information to information brokers is used, in part, to cover the costs of its functions – including the function of supplying this information generally. If that is true, and if you take a cut out of that money, that is money that comes out of the budget of the LPI, right? Now, either they are in surplus (and giving money back to government, where, presumably, it is plowed into other services), or they are not, and that budget shortfall (whatever it is) is made up other ways. I’ve no idea which of these is true, but let’s assume the latter for the moment. What is the obvious way to make up that shortfall? Well, I guess you could charge the information brokers more, which means users of their services pay more, with some money going to the surveyors. Or you get the money out of other users of the LPI – I guess the people registering land titles. let’s hope it’s not the latter, because on some abstract level that would mean your registrants are almost paying the surveyors twice: for the initial plans and for the government royalty for use of the plans. [update: of course, if it is the former, that increases the cost of the information, which may have the effect of decreasing the number of companies willing to engage in the process of taking and processing the information in a way that makes it useful.]

But here’s an interesting question. What if the NSW government wanted to make the surveyor information freely available at no cost? What, in other words, if no one was getting a windfall?

There’s a lot of talk, at the moment, about Public Sector Information, and the general desirability of governments making access to such information cheaper, and more readily available, in order to encourage maximum commercial and non-commercial use of the information in all kinds of interesting ways. The Victorian Parliament is actually having an inquiry on this at the moment. What, then, are the implications of this decision for the governments of Australia making material freely available – say, under open licensing? If they did that, would they have to pay remuneration? And if so, is that going to make Australian governments less enthusiastic about making public sector information freely available? And if so, will we be deprived of whatever benefits may come from more open access to public sector information? Food for thought.