Remuneration (Sampling) Agreement
Between
Copyright Agency Limited
and
Australian Vice-Chancellors' Committee
and
The Universities whose names and addresses appear in Annexure "A"

Contents

Clause Number	Heading
1.	Definitions and Interpretations
1.1	Definitions
1.2	Presumptions of interpretation
1.3	Liability is several
1.4	Successors and assigns
2.	Remuneration Notices
3.	Remuneration and Licensed Copying during the Contract Remuneration Period
4.	Payment of Remuneration
5.	Notices to and by Universities
6.	Proceedings
7.	Term, default and termination
8.	Miscellaneous
8.1	Assignment
8.2	Entire agreement
8.3	Governing law and jurisdiction
8.4	Amendments to the Act
8.5	Notice of Affiliated Institutions

Remuneration (Sampling) Agreement

This Agreement is made on the day of , 2000

Between

Copyright Agency Limited (ACN 001 228 799) of Level 19, 157 Liverpool Street, Sydney, New South Wales ("CAL")
and
Australian Vice-Chancellors' Committee (ACN 008 502 930) of 1 Geils Court, Deakin, Australian Capital Territory ("AVCC")
and
The Universities whose names and addresses appear in Annexure "A"

Recitals

A. The parties wish to create a simple and certain basis for the calculation and payment of equitable remuneration for Licensed Copies that are made by or on behalf of Sampling Universities during the term of this Agreement.

B. In entering into this Agreement the parties acknowledge that the circumstances in which Licensed Copies are made, the uses to which they are put, the value they provide, the scope and construction of the Statutory Licence and its relationship with fair dealing and other defences and exceptions under the Act are unresolved. Accordingly, this Agreement is made with the intention that it will have no application beyond the period while it is in force and that it should not be regarded by the Tribunal or a Court as indicative or evidence of what any of the provisions of a reasonable agreement or arrangement between the parties might be after that period or what value any particular Copies or Licensed Copies (including those made by digital means or into digital formats) or their communication or use might have.

Operative provisions

"Index" means the All Groups Consumer Price Index Number for the 8 capital cities published by the Australian Bureau of Statistics, or any price index substituted for it by the Australian Bureau of Statistics;

"Insolvency Event" means the happening of any of these events:

For example, a student undertaking a standard full time annual program of study for a course generates one equivalent full time student unit;

"Index" means the All Groups Consumer Price Index Number for the 8 capital cities published by the Australian Bureau of Statistics, or any price index substituted for it by the Australian Bureau of Statistics;

"Insolvency Event" means the happening of any of these events:

1. an application is made to a court for an order that the relevant party be wound up, declared bankrupt or that a provisional liquidator be appointed (unless the application is withdrawn, struck out or dismissed within 14 days of it being made);
   
   
2. a liquidator is appointed to the relevant party;
   
   
3. a resolution is passed or a decision taken to appoint an administrator to the relevant party or there is a controller appointed in respect of any of its assets;
   
   
4. except to reconstruct or amalgamate while solvent, the relevant party enters into, or resolves to enter into, an arrangement or composition with, or assignment for the benefit of, all of any of its creditors, or it, or anyone on its behalf, proposes a reorganisation, moratorium, deed of company arrangement or other administration involving any of them or the winding up or dissolution of that party;
   
   
5. the relevant party is, states that it is or is presumed under any applicable law to be, insolvent;
   
   
6. the relevant party becomes an insolvent under administration as defined in section 9 of the Corporations Law or action is taken which could result in that event;
   
   
7. as a result of the operation of section 459F(1) of the Corporations Law, the relevant party is taken to have failed to comply with a statutory demand;
   
   
8. anything having a substantially similar effect to any of the events specified above happens to the relevant party under the law of any jurisdiction;

"Licensed Copies" means Copies made by or on behalf of Sampling Universities or their Affiliated Institutions pursuant to the Statutory Licence, other than Copies made for or in connection with TAFE and continuing education students, and "Licensed Copying" has a corresponding meaning;

"Remuneration" means any amount payable to CAL by a Sampling University in accordance with clause 3 of this Agreement;

"Remuneration Notices" means the remuneration notices given by each of the Sampling Universities to CAL bearing the dates specified in Annexure "A" or, in the case of a Sampling University which becomes a party to this Agreement pursuant to clause 2.1, the remuneration notice given by it for the purpose of paragraph (a) of that clause;

"Sampling System" means the interim sampling system which is the subject of the 5 January 2000 orders of the Tribunal in Copyright Tribunal Proceedings CT 4 of 1997 (including all protocols, procedures, steps, documents, annexures and appendices referred to in those orders or in annexures to those orders), as added to or varied by agreement, order or with the consent of the Tribunal from time to time, including but without limitation additions or variations to allow for the sampling of Licensed Copies which are made by digital means or which are made from or into digital formats;

"Sampling Universities" means, at any time, those universities named in Annexure "A" together with any other Universities which have later become parties to this Agreement pursuant to clause 2.1;

"Statutory Licence" means the licence under Part VB of the Act;

"Tribunal" means the Copyright Tribunal; and

"Works" means literary, dramatic, musical and artistic works within the meaning of the Act other than works included in sound recordings or cinematograph films where a word or phrase is given a defined meaning another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.

1.2 Presumptions of interpretation

Unless the context otherwise requires, a word which denotes:

1. the singular denotes the plural and vice versa; and
   
   
2. a person includes an individual, a body corporate and a government.
   
   
   Unless the context otherwise requires, a reference to:
   
   
3. any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation;
   
   
4. any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced;
   
   
5. a group of persons includes any one or more of them;
   
   
6. a thing or amount is a reference to the whole and each part of it; and
   
   
7. "including" is to be interpreted as having the same meaning as if it read "including but without limitation".

1.3 Liability is several

An agreement, warranty, representation or obligation which is expressed to bind or benefit two or more persons under this Agreement binds or benefits each of those persons severally. Neither AVCC nor any University will be jointly or severally liable for the performance by any other University or party of its obligations under this Agreement which will remain the responsibility of that other party alone.

1.4 Successors and assigns

A person includes the trustee, executor, administrator, successor in title and permitted assign of that person. This clause must not be construed as permitting a party to assign any right under this Agreement without the prior written consent of all other parties.

2. Remuneration Notices

2.1 The parties acknowledge and agree that any university whose Vice-Chancellor or President is a member or AVCC but which is not a Sampling University named in Annexure "A" may, at any time during the term of this Agreement (or any renewal of that term), elect to become a Sampling University by:

1. giving notice revoking any then current remuneration notice given under section 135ZU of the Act and giving a sampling remuneration notice to CAL under that section; and
   
   
2. agreeing in writing (in such form as CAL may reasonably require) to be bound by this Agreement, as though a party named in Annexure "A", with effect from the first day of that quarterly payment period provided for in clause 4.1 which begins immediately after its signing and dating that written agreement.

The parties further acknowledge and agree that any such election will take effect so that the University is a Sampling University with all the rights and obligations that such a party has under this Agreement from the first day of the said next quarterly payment period.

2.2 Each of the Sampling Universities agrees that in consideration of its rights and benefits under this Agreement it will not exercise any right to revoke its Remuneration Notice with effect before the earlier of 31 December 2002 or the date of any earlier termination of this Agreement with respect to that Sampling University.

2.3 If the Remuneration Notice given by any Sampling University named in Annexure "A" does not come into force and effect under the Act until after 1 January 2000 then CAL agrees that they will nevertheless be deemed to be Sampling Universities for the purpose of this Agreement and will have all the rights and obligations of a Sampling University from that date. CAL agrees that from that date until the relevant Remuneration Notice comes into force and effect under the Act, it will treat the Sampling University as having the benefit of the Part VB statutory licence with respect to all Licensed Copies made by or on behalf of that Sampling University in that period even though, with CAL?s consent, the marking and record requirements of subsection 135 ZX(1) of the Act have not been complied with in respect of those Licensed Copies.

2.4 If the Remuneration Notice given by an Sampling University that becomes a party to this Agreement pursuant to clause 2.1 does not come into force and effect until after the date when it becomes a party then CAL agrees that it will nevertheless be deemed to be a Sampling University for the purpose of this Agreement and will have all the rights and obligations of a Sampling University from that date. CAL agrees that from that date until the relevant Remuneration Notice comes into force and effect under the Act, it will treat the Sampling University as having the benefit of the Part VB statutory licence with respect to all Licensed Copies made by or on behalf of that Sampling University in that period even though, with CAL's consent, the marketing and record requirements of subsection 135 ZX(1) of the Act have not been complied with in respect of those Licensed Copies.

3. Remuneration and Licensed Copying during the Contract Remuneration Period

3.1 The amount of equitable remuneration payable to CAL by each Sampling University for all Licensed Copies for each calendar year during the Contract Remuneration Period will be the Fee Per Student calculated in accordance with clause 3.2, multiplied by the EFTSU for the Sampling University for the previous calendar year except that, in the case of any Sampling University which becomes a party to this Agreement pursuant to clause 2.1 with effect from a date other than 1 January in any year, the amount of Remuneration payable by it with respect to that calendar year will be pro rated to reflect that part of the year during which it was a party to this Agreement.

3.2 The Fee Per Student for 2000 will be $25.00 and for each subsequent calendar year during the Contract Remuneration Period will be calculated using the following formula:

Fee Per Student	= A x B
Where:	A = $25.00 B = Current CPI ¸ CPI quarter 1999
Where:	"Current CPI" means the Index last published by the Bureau before 1 January in the Calendar year for which the Fee Per Student is being calculated; "CPI December 1999" means the December quarter 1999 Index last published by the Australian Bureau of Statistics.

CAL agrees that at least 28 days before it issues any invoice which takes account of an increase in the Fee Per Student it will provide AVCC with written notice of the increase accompanied by detail of how it was calculated pursuant to this clause.

The parties acknowledge and agree that the amount of $25.00 referred to in this clause does not reflect any agreement as to amounts of Licensed Copying (per EFTSU) that have been done in the past, or which might be done by Sampling Universities during the Contract Remuneration Period, or the value that particular Copies or Licensed Copies (including those made by digital means or into digital formats) or their communication or use might have, but rather is an amount that the Sampling Universities are prepared to pay for Licensed Copies during the Contract Remuneration Period and that CAL is prepared to accept in return.

3.3 CAL agrees that:

1. giving notice revoking any then current remuneration notice given under section 135ZU of the Act and giving a sampling remuneration notice to CAL under that section; and
   
   
2. it will not bring any action, claim, demand or proceeding (whether during or after the Contract Remuneration Period) against AVCC or any Sampling University (or its Affiliated Institutions) with respect to any Copying by or on behalf of that Sampling University (or its Affiliated Institutions) at any time during the Contract Remuneration Period that it is a party to this Agreement which copying has not been marked as Licensed Copying where the Statutory Licence was available with respect to that Copying but the Sampling University has either not made the Copying in reliance on the Statutory Licence or not marked it accordingly. For the avoidance of doubt, and by way of example, if Copies are made by or on behalf of a Sampling University during the Contract Remuneration Period (and while it is a party to this Agreement) in purported reliance upon either a fair dealing, insubstantial portion or similar exception or exemption under the Act, or in purported reliance upon a permission or licence from the relevant copyright owner, and CAL disputes the availability or application of the relevant exception, exemption or permission or licence, then CAL will not bring any action, claim, demand or proceeding to the extent that the Copying could have been done in reliance upon the Statutory Licence. This paragraph will not apply if the relevant Sampling University is a Surveyed University at the time of the Copying unless it has complied with the Sampling System requirements with respect to that Copying.

4. Payment of Remuneration

4.1 The Remuneration payable by each Sampling University with respect to each Contract Remuneration Year shall be invoiced by CAL, and payable by the Sampling University, in four equal quarterly instalments. Invoices shall be sent to each Sampling University on or after 1 January, 1 April, 1 July and 1 October in each Contract Remuneration Year and shall be payable by each of them within 28 days of receipt. A copy of the invoices will also be provided to the AVCC at the same time.

4.2 A Sampling University will pay CAL interest on any money due and payable by it and outstanding under this Agreement at the Agreed Rate, which will accrue daily from the due date to and including the date of payment.

4.3 Remuneration calculated under clause 3 and payable under clause 4 is full and equitable remuneration for all Licensed Copies made by a Sampling University and its Affiliated Institutions while it is a party to this Agreement during the Contract Remuneration Period and no further amount will be claimed or payable, or reimbursement sought, by CAL (whether the claim or other action is made or taken during or after the Contract Remuneration Period) with respect to those Licensed Copies.

4.4 Each of AVCC, CAL and the Sampling Universities agrees that it will not, whether during or after the Contract Remuneration Period, make further applications to the Tribunal or to any court, or seek further orders in any current proceedings, to the extent that those applications or orders have the object or likely effect of adding to or varying any amount payable under this Agreement with respect to Licensed Copying during the Contract Remuneration Period by or on behalf of any Sampling University or its Affiliated Institutions.

4.5 CAL agrees that it will not directly or indirectly assist in the bringing of any claim, action, demand or proceeding by any other party, whether for copyright infringement, breach of contract or otherwise, and whether brought during or after the Contract Remuneration Period, which might result in the payment of damages or any other amount in addition to Remuneration, calculated under clause 3 and payable under clause 4, being payable by any Sampling University or its Affiliated Institutions with respect to Licensed Copies made, communicated or used by that University or its Affiliated Institutions while it is a party to this Agreement during the Contract Remuneration Period.

4.6 Clauses 3.3(b), 4.3, 4.4 and 4.5 will survive any expiry or termination of this Agreement.

5. Notices to and by Universities

5.1 CAL acknowledges and agrees that each of the Sampling Universities has authorised AVCC to receive all notices issued or given by CAL under this Agreement and that any notice issued or given by CAL to a Sampling University which is not addressed to AVCC on behalf of that Sampling University, and sent to AVCC?s address, will not be effectively given or issued to that Sampling University for the purposes of this Agreement.

5.2 Any Sampling University giving any notice to CAL under this Agreement must on the same day give AVCC a copy of that notice failing which the notice to CAL will not be effective.

5.3 If a notice is given under this Agreement (other than a notice given under clause 7.1) and any period is specified with respect to the operation or effect of that notice then the party giving that notice may withdraw that notice by writing to all other parties at any time during that period in which case the notice will be treated as though it had never been given.

6. Proceedings

6.1 Except to the extent expressly provided in this Agreement, the parties remain free to pursue any existing or future Tribunal, Court or other proceedings in respect of their respective rights and remedies against, inter alia, each other as they each see fit, but the parties acknowledge and agree that any decision in relation to any issue raised in any such proceedings will not result in an increase or other alteration of any amount payable under this Agreement by any Sampling University with respect to the period that it is a party to this Agreement during the Contract Remuneration Period.

7. Term, default and termination

7.1 This Agreement commences on the date on which it is made and will continue until at least 31 December 2002, unless terminated earlier by any party in accordance with this clause 7. If neither AVCC nor CAL gives at least 6 months written notice to the other, expiring on 31 December 2002, that it wishes this Agreement to terminate on and from that date then it will be automatically renewed for subsequent calendar years unless and until either of them gives at least 6 months written notice to the other, expiring on 31 December in any year after 2002, that I wishes to terminate the agreement with effect from that date. Each Sampling University whose Remuneration Notice remains in force and effect after 31 December 2002 will remain a party to this Agreement, to the extent that this Agreement remains in force, unless and until it exercises its right to revoke its Remuneration Notice and that revocation becomes effective.

7.2 CAL may terminate this Agreement by notice in writing with respect to any Sampling University if:

1. giving notice revoking any then current remuneration notice given under section 135ZU of the Act and giving a sampling remuneration notice to CAL under that section; and
   
   
2. that University ceases to be an Educational Institution; or
   
   
3. an Insolvency Event occurs in respect of the Sampling University.

7.3 Any Sampling University may terminate this Agreement, with respect to that Sampling University, by notice in writing if:

1. CAL breaches this Agreement in a material respect and fails to rectify that breach within 28 days of receiving written notice requiring it to do so; or
   
   
2. an Insolvency Event occurs with respect to CAL.

7.4 AVCC may terminate this Agreement by notice in writing if:

1. CAL breaches this Agreement in a material respect and fails to rectify that breach within 28 days of receiving written notice requiring it to do so;
   
   
2. an Insolvency Event occurs with respect to CAL.
   
   
3. it has been terminated by or with respect to all Sampling Universities; or
   
   
4. CAL is not the only collecting society declared under the Act as a collecting society for the purposes of any statutory licence which is at any time during the Contract Remuneration Period provided for in the Act in connection with the making, communication or use of Copies of Works for educational purposes.

7.5 Termination or expiration of this Agreement under this clause 7 is without prejudice to any other rights or remedies contained in this Agreement or provided by law or equity, including any right of any party to recover damages for breach of this Agreement, or to enforce any obligation arising under this Agreement accrued at the date of termination or expiration.

7.6 If this Agreement is terminated with respect to any one Sampling University by that Sampling University, but not by AVCC or CAL, then:

1. the parties agree that it shall continue in full force and effect with respect to all other Sampling Universities unless expressly terminated by or with respect to them in accordance with its terms; and
   
   
2. the Remuneration payable under this Agreement with respect to that Sampling University in the Contract Remuneration Year during which the termination takes effect will be pro rated to reflect that part of the year during which it was a party to this Agreement. Any pro rated amount that must be paid or reimbursed as at the effective date of termination will be paid or reimbursed in full within 28 days of that date.

8. Miscellaneous

8.1 Assignment

A party may only assign a right under this Agreement with the prior written consent of the other parties.

8.2 Entire agreement

This Agreement embodies the entire understanding and Agreement between the parties as to the subject matter of this Agreement.

All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of this Agreement are merged in and superseded by this Agreement.

8.3 Governing law and jurisdiction

This Agreement is governed by and must be construed in accordance with the laws of New South Wales.

Each party:

1. irrevocably and unconditionally submits to the non-exclusvie jurisdiction of the Tribunal and the courts of New South Wales and all courts which have jurisdiction to hear appeals from those courts; and
   
   
2. waives any right to object to proceedings being brought in those courts for any reason.

8.4 Amendments to the Act

The parties agree that if, as a result of any amendments to the Act, the Sampling Universities are required to give further remuneration notices in order to receive the benefit of statutory licences (the "new statutory licences") under the Act to copy, communicate, distribute, make available or use any Works for educational purposes then:

1. subject to paragraph (b) below, any undertaking by the Sampling Universities (whether contained in those remuneration notices or the Act as amended or otherwise) to pay equitable remuneration with respect to the exercise of those new statutory licences will be taken to have been complied with in full during the Contract Remuneration Period if the amounts payable under Clause 3.1 are paid; and
   
   
2. they will discuss in good faith what further information, notices or records need to be provided or kept with respect to the exercise of those new statutory licences by a Sampling University which is surveyed as part of the Sampling System during any Sampling Period in an effort to agree appropriate modifications to the Sampling System. Failing agreement a Sampling University which is surveyed will provide such information, notices and records during the relevant Sampling Period as the Act (as amended) would require of any University which wished to exercise the same new statutory licences but was not a Sampling University except that, if the Act (as amended) leaves such matters to be agreed by the Sampling University with CAL or, in default of agreement, to be decided by the Tribunal, then CAL or the relevant Sampling University may apply to the Tribunal to determine an appropriate Sampling System or appropriate additions and/or modifications to the Sampling System and to the records guidelines, protocols, undertakings and other documents comprised or referred to in the Sampling System.

8.5 Notice of Affiliated Institutions

1. Within 28 days of the date of this Agreement AVCC will give CAL written notice which specifies the Affiliated Institutions for each of the Sampling Universities as at the date of the notice.
   
   
2. Within 28 days of the date when any university becomes a party to this Agreement pursuant to clause 2.1, AVCC will give written notice to CAL which specifies the Affiliated Institutions of that University as at the date of the notice.
   
   
3. In December in each Contract Remuneration Year AVCC will give CAL an updated notice specifying the Affiliated Institutions for each of the Sampling Universities as at the date of the notice