COPYRIGHT TRIBUNAL OF AUSTRALIA

 

Phonographic Performance Company of Australia Limited (ACN 000 680 704) under section 154(1) of the Copyright Act 1968 (Cth) [2007] ACopyT 2



 


 


 


 


REFERENCE BY:  PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED (ACN 000 680 704) UNDER SECTION 154(1) OF THE COPYRIGHT ACT 1968 (CTH)

 

CT2 OF 2004

 

 

 



THE TRIBUNAL:     EMMETT J (PRESIDENT), PROFESSOR DENNIS PEARCE (MEMBER), DR RHONDA SMITH (MEMBER)

15 NOVEMBER 2007

SYDNEY

COMMONWEALTH OF AUSTRALIA

Copyright Act 1968


IN THE COPYRIGHT TRIBUNAL

CT2 OF 2004

 

 

 

REFERENCE BY:

 

PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED UNDER SECTION 154(1) OF THE COPYRIGHT ACT 1968

 

 

 

 

THE TRIBUNAL:

EMMETT J (PRESIDENT)

PROFESSOR DENNIS PEARCE (MEMBER)

DR RHONDA SMITH (MEMBER)

 

DATE OF ORDER:

15 NOVEMBER 2007

WHERE MADE:

SYDNEY

 


FURTHER REASONS FOR DETERMINATION

1                     On 10 July 2007, the Tribunal published its reasons for concluding that a scheme proposed by the Society would be confirmed subject to the adjustment of the licence fee proposed and the amendment of certain definitions.  The Society was directed to bring in short minutes to give effect to the Tribunal’s conclusions. 

2                     The Society brought in short minutes, which the Society contended gave effect to the Tribunal’s conclusions.  However, the Nightclub Respondents took issue with the form of scheme identified in the Society’s short minutes.  The dispute concerned the extent to which there should be a phasing in of the licence fees payable under the proposed scheme. 

3                     In its reasons, the Tribunal observed (at [10]) that, where approval of a scheme would lead to a substantial increase in fees, the increases could be phased in over a period of years rather than being introduced immediately.  The Tribunal also observed that, in the present case, the Society proposed that there be a phasing in of the increase claimed by it.  The Tribunal also observed (at [201]) that the object of the Tribunal, in approving the proposed scheme, was to fix upon a licence fee that could be regarded, as nearly as it is possible to estimate, as the fair market price for the privilege of playing recorded music in respect of which the Society is able to grant a licence.  The fact that the market rate may be substantially higher than has hitherto been charged by the Society is no reason why the Society should not now charge that rate. 

4                     The Tribunal noted that, having regard to the significance of the increase proposed by the Society, the Society was prepared to phase in the increase proposed by it over a period of five years.  The rates proposed in the scheme put forward on behalf of the Society were as follows:

TARIFF CATEGORY

DANCE USE

RATE

E 1

Nightclubs

Year 1

Year 2

Year 3

Year 4

Year 5

$1.12

$1.42

$1.72

$2.02

$2.32

The Proposed Rates are per person per night of operation, calculated on the basis of the Venue Capacity.  The Proposed Rates would also increase annually by CPI.

E 2

Dances and Dance Parties

$5.10

The Proposed Rate is per person per event based on number of attendees.  The Proposed Rate would increase annually by CPI.

5                     In the result, the Tribunal’s conclusion was that an appropriate licence fee for nightclubs was $1.05 per person per night of operation, calculated on the basis of the venue capacity.  The Tribunal did not indicate any lesser rate for a phasing in period.  The rate of $1.05 is to be contrasted with the rates proposed by the Society, which culminated in a rate of $2.32 after five years.

6                     Nevertheless, the rate fixed by the Tribunal involves a significant increase over the rate that the Society has been charging in the past.  While the Tribunal did not identify the rates that might be charged during a phasing in period for the rate of $1.05, the Tribunal’s intention was that the scheme proposed by the Society would be varied by substituting, for the rates proposed by the Society, rates adjusted in the proportion of $1.05 bears to $2.32.  On that basis, the rates would be as follows:

Year 1

Year 2

Year 3

Year 4

Year 5

$0.51

$0.64

$0.78

$0.91

$1.05

7                     The Society did not, in the scheme proposed by it, suggest a phasing in period for the licence fee to be charged in respect of dance parties.  No contention has been advanced on behalf of Mardi Gras that there should be a phasing in of that fee. 

8                     The Tribunal considers that the scheme proposed by the Society should be confirmed subject to changes of the definitions referred to in its earlier reasons and the substitution of licence fees as indicated above.  The Tribunal has not yet made a determination and will now proceed to do so in accordance with the above. 

 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons of the Copyright Tribunal of Australia.


Associate:


Dated:         15 November 2007



Counsel for the Applicant:

R. Cobden SC with C. Dimitriadis and H. Bevan

 

 

Solicitor for the Applicant:

Gilbert + Tobin Lawyers

 

 

Counsel for the Respondent:

J.V. Nicholas SC with D.R. Sibtain

 

 

Solicitor for the Respondent:

Minter Ellison Lawyers

 

 

Date of Further Submissions:

9, 16, 27 August and 4 September 2007.

 

 

Date of Reasons:

15 November 2007