Intellectual Property Update - XCFB and National Disability Insurance Agency

Intellectual Property Trade Practices
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M Marcus
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[2021] AATA 3285

Copyright – request by expert witness to set aside Tribunal Direction requiring production of psychological testing materials – consideration of copyright protections and exemptions

This application concerned a decision made by the National Disability Insurance Agency (the NDIA) not to grant the applicant, XCFB, access to the National Disability Insurance Scheme on the basis that the NDIA considered that she did not meet the disability requirements under the relevant act.

The NDIA had called a neuropsychologist as an expert witness who had conducted an independent assessment of XCFB and had prepared some expert reports that had been produced to the Tribunal. The Tribunal directed that the neuropsychologist produce copies of all clinical notes and psychometric test results in respect of XCFB and copies of all accompanying manuals and literature. The neuropsychologist requested that this direction be set aside on the basis that it would be against public interest for the documents to be produced and also that it may breach copyright protections.

In relation to the question of copyright, the Tribunal noted that, to the extent that any of the materials were protected by copyright, an exemption applies under section 43 of the Copyright Act 1968 (Cth) in respect of reproduction for the purposes of judicial proceedings, which includes proceedings before a Tribunal.

In relation to public policy, the Tribunal was satisfied that consideration of the documents directed to be produced by the neuropsychologist under the Tribunal’s Direction was required for the Tribunal to reach a correct or preferable decision.

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