COPYRIGHT TRIBUNAL OF AUSTRALIA
COPYRIGHT – proposed licensing scheme – reference of scheme to Tribunal for approval under s 154(4) of the Copyright Act 1968 (Cth) – whether valid reference requires a certain licence fee to be nominated – whether nominating the amount that is payable by licensees to another collecting society is sufficiently certain – whether charge or charges must be a fixed money sum or the product of a monetarised figure
Copyright Act 1968 (Cth), ss 89, 136, 154
CT2 OF 2007
EMMETT J (PRESIDENT)
27 february 2008
SYDNEY
COMMONWEALTH OF AUSTRALIA
Copyright Act 1968
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IN THE COPYRIGHT TRIBUNAL |
CT2 OF 2007 |
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REFERENCE BY:
PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED UNDER SECTION 154(1) OF THE COPYRIGHT ACT 1968 (CTH)
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THE TRIBUNAL: |
EMMETT J (PRESIDENT)
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DATE: |
27 FEBRUARY 2008 |
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WHERE MADE: |
SYDNEY |
THE TRIBUNAL DIRECTS THAT:
1. The application by FreeTV Australia to set aside the summons to Australasian Performing Right Association Limited (APRA) dated 11 December 2007 (as amended) be dismissed.
2. The matter be listed for further directions on 19 March 2008 at 9.30 am.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
COMMONWEALTH OF AUSTRALIA
Copyright Act 1968
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IN THE COPYRIGHT TRIBUNAL |
CT2 OF 2007 |
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REFERENCE BY:
PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED UNDER SECTION 154(1) OF THE COPYRIGHT ACT 1968
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THE TRIBUNAL: |
EMMETT J (PRESIDENT)
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DATE: |
27 FEBRUARY 2008 |
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WHERE MADE: |
SYDNEY |
REASONS FOR DETERMINATION
1 The applicant, Phonographic Performance Company of Australia Limited (the Society), is a collecting society which grants licences authorising, relevantly, the broadcast of sound recordings within the meaning of s 89 of the Copyright Act 1968 (Cth) (the Act), in respect of which copyright includes the exclusive right to broadcast the recordings in Australia.
2 Various entities, which are members of the Society and which are the owners or exclusive licensees of copyright in Australia in a repertoire of protected sound recordings, have granted the Society a non-exclusive licence with respect to the copyright in their repertoire of protected sound recording (the Licensed Sound Recordings). The Society has referred to the Tribunal a proposed licence scheme. The amended reference, which was filed on 21 February 2008, asserts that the Society is prepared to grant licences to commercial television broadcasters to broadcast the Licensed Sound Recordings.
3 The amended reference asserts that the Society proposes to bring into operation a licence scheme setting the licence fee or fees that will apply to the broadcasting of the licensed sound recordings by commercial television broadcasters. The proposed scheme provides as follows:
“(a) [the Society] is willing to grant licences under [the scheme] to persons holding commercial television broadcasting licences under the Broadcasting Services Act 1992;
(b) a licence granted under [the scheme] will authorise the broadcast of Licensed Sound Recordings, as defined in the Amended Reference…
(c) the licence to each licensee will be subject to payment of charges in respect of any particular period equal to the amount or amounts paid by or on behalf of that licensee to Australasian Performing Right Association Limited (APRA) in respect of the right to broadcast musical works (exclusive of any amounts payable by or on behalf of that licensee to APRA on account of GST or interest on overdue amounts) for that period;
(a) the licence will be subject to the conditions set out in Annexure B to the Amended Reference…”
4 Clause 5.1 of Annexure B provides that the licence fee will be payable within seven days of each date on which a corresponding amount is paid by or on behalf of the licensee to APRA in respect of the right to broadcast musical works. The terms of the conditions contain other provisions relating to matters such as GST and the payment of interest on unpaid amounts.
5 The Society does not know, with any certainty, the amounts that are payable by commercial television broadcasters to APRA in respect of the right to broadcast musical works. In order to find out for certain, the Society has issued a summons to APRA requiring the production of all current licensing agreements between APRA and commercial television broadcasters, together with other documents. Free TV Australia, which in effect represents the commercial television broadcasters, has moved to set aside the summons on the basis that the proposed scheme is not a licence scheme within the meaning of s 136 of the Act that could be the subject of approval by the Tribunal under s 154.
6 Section 136 relevantly provides that licence scheme means:
“a scheme … formulated by a licensor … and setting out the classes of cases in which the licensor … is willing … to grant licences and the charges (if any) subject to payment of which, and the conditions subject to which, licences would be granted in those classes of cases.”
Free TV Australia contends that the proposed scheme does not satisfy that definition because it does not set out the charges subject to the payment of which a licence would be granted to a commercial television broadcaster. Free TV Australia says that the proposed scheme does not set out a charge; rather it does no more, if it does that, than specify a mechanism whereby the charge can be determined.
7 Free TV Australia puts its contention at two levels. The first is that the scheme of the Act does not contemplate that a collecting society that is able to grant licences in respect of one copyright may adopt, as a charge, the fee or charge payable to another collecting society in respect of a different copyright. I do not consider that that complaint is justified, whether or not it would be possible for different licensors to join in a single scheme. I consider that it is clear enough that the approach adopted by the Society in this case is to endeavour to fix a charge by reference to the charges made by another collecting society, namely APRA, by the mechanism that I have set out.
8 Ultimately, the Tribunal will not be in a position to approve the proposed scheme under s 154 unless and until the quantum of the proposed charge has been determined. On the material presently before the Tribunal that is available to the Society, the Society cannot say what the charge will be and the Tribunal could not determine, in money terms, what the charge will be. However, subject to the appropriate drafting of the mechanism whereby the amount payable by way of charge is to be determined, if that mechanism will give rise to a fixed money sum, albeit one that it is not presently known, that, in my view, would satisfy the requirement that the proposed scheme set out the charge, subject to payment of which, licences would be granted. Certum est quod certum reddi potest: something can be regarded as fixed if, without more or further discussion or negotiation, an amount can be determined or calculated, albeit that, at a given time, the amount is not known.
9 It is, of course, a curious notion that a collecting society should apply to the Tribunal for approval of a licence scheme which will provide for the payment of a charge, the quantum of which is not presently known with certainty to that society. The Society says that it has some notion, from published material, of the likely quantum. Be that as it may, that may be a matter ultimately for investigation in the course of the reference to the Tribunal.
10 Free TV Australia also contends that the basis upon which a charge is paid to APRA is sufficiently different from the basis upon which any charge payable to the Society should be determined, that the APRA charge would not even be an appropriate comparator for the purposes of assessing the reasonableness of the society’s proposed scheme. That, ultimately, will be a matter for debate and inquiry during the course of the reference. If Free TV Australia is successful in that contention, then it may be that, ultimately, the proposed scheme will not be approved. However, I express no view about that at this stage.
11 I have some reservations about the language of the clause proposed although I think its intention is clear enough. The intention is, as I understand it, that the Society proposes that the licence will be subject to payment of a charge, in respect of any period in respect of which an amount is payable by or on behalf of a licensee to APRA for the right to broadcast musical works for that period, of an amount equal to the amount so payable to APRA. As I have said, whether that figure, when it is known and disclosed to the Tribunal, is such that the licence scheme would be regarded as reasonable, is a matter for further consideration.
12 There may, of course, be significant questions of confidentiality involved in the Society having access to the material that is the subject of the summons. I am quite confident, however, that appropriate directions can be given to preserve confidentiality once the proposed material is produced in answer to the summons.
13 Accordingly, I propose to dismiss Free TV’s application to set aside the summons.
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I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. |
Associate:
Dated: 17 March 2008
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Counsel for the Applicant: |
Mr R. Cobden SC, Mr C. Dimitriadis |
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Solicitor for the Applicant: |
Gilbert + Tobin |
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Counsel for Free TV Australia Limited: |
Mr A. Bannon SC, Ms K. Richardson |
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Solicitor for Free TV Australia Limited: |
Minter Ellison |
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Date of Hearing: |
27 February 2008 |
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Date of Judgment: |
27 February 2008 |