COPYRIGHT TRIBUNAL OF AUSTRALIA

Audio-Visual Copyright Society Limited [2015] ACopyT 4

EFFECTIVE TODAY

THE TRIBUNAL:

1.    DECLARES Audio-Visual Copyright Society Limited ACN 003 912 310 (Screenrights) to be the collecting society under section 153F of the Copyright Act 1968 (Cth) for the purposes of Division 2 of Part VII in relation to government copies of the following classes of copyright material:

(a)    sound recordings;

(b)    cinematograph films;

(c)    television broadcasts or sound broadcasts,

(together Audio-Visual Items); and

(d)    works included in an Audio-Visual Item,

where the government copy was made:

(i)    from a communication to the public; or

(ii)    from any copy made from a communication to the public.

2.    REVOKES the declaration of Screenrights dated 4 May 2000.

3.    DIRECTS the Registrar to publish the revocation and declaration in The Australian Government Gazette.

REASONS FOR DETERMINATION

1    The regime for government copying is in Division 2 of Part VII of the Copyright Act 1968 (Cth) (the Act). Government copying is permitted where copyright material is copied for the services of the Commonwealth or a State (s 183(1) of the Act). Provided that the government copies are made in accordance with the provisions of the Act, copyright is not infringed.

2    Government copying is administered either by means of a procedure that involves, for example, location of each owner of copyright and negotiation of terms as set out in some detail in s 183 of the Act or, where a company is the relevant collecting society for the purposes of the Act in relation to the copy and the company has not ceased operating as that collecting society, s 183A(1) of the Act applies.

3    Section 182B(1) of the Act provides that a collecting society is a company in respect of which the declaration is in force under s 153F of the Act. That is, where a collecting society is declared, the Crown deals only with the collecting society and ss 183(4) and 183(5), which require the Crown to deal with the owner of each copyright, do not apply.

4    The applicant, Audio-Visual Copyright Society Limited ACN 003 912 310 (Screenrights) was, on 4 May 2000, declared under s 153F of the Act to be the collecting society for the purposes of Div 2 of Part VII (Existing Declaration). The Existing Declaration was as follows:

DECLARE as a declaration taking effect as and from today under section 153F of the Copyright Act 1968 that Audio-Visual Copyright Society Limited be the collecting society for the purposes of Division 2 of Part VII of that act in relation to the relevant copyright owners of the following classes of copyright material:

(i)    a sound recording; or

(ii)    a cinematograph film; or

(iii)    a television or sound broadcast; or

(iv)    a work that is included in a sound recording, a cinematograph film or a television or sound transmission

in respect of the application of the copyright to the making of a copy of a transmission of a sound broadcast or a television broadcast including (to avoid doubt) a sound broadcast, or a television broadcast transmitted for a fee and a television transmission to subscribers to a diffusion service.

5    It can be seen that the Existing Declaration is limited to specific classes of government copying by reference to the type of copyright material and the source of the copy. That is, it applies to government copies of these materials from sound recordings or cinematograph films, or transmissions of sound broadcasts and television broadcasts, or of a work that is included in a sound recording, a cinematograph film or a television or sound transmission.

6    Screenrights seeks to vary the Existing Declaration so that it applies to material copied from the Internet. This, Screenrights submits, broadens the reach of the Existing Declaration in line with the realities of today’s communications environment and the practice of government copying. It does not seek to extend the Existing Declaration to government copies of other types of copyright material. In its Application, as filed on 2 July 2015 (the Application), Screenrights seeks orders that the Existing Declaration be revoked pursuant to s 153G of the Act and a new declaration made under s 153F of the Act (Proposed Declaration).

CHRONOLOGY

Consultation

7    Between June 2013 and February 2015, Mr James Dickinson, the Head of Licensing of Screenrights explained, Screenrights consulted widely with ‘government representatives’ and ‘representatives of affected copyright owners’ for the purposes of this application. The representatives of affected copyright owners included the following organisations:

    FreeTV (the peak body for Australian commercial free to air broadcasters);

    the Australian Broadcasting Corporation (ABC);

    the Special Broadcasting Service;

    Commercial Radio Australia (the national industry body representing commercial radio broadcasters);

    FOXTEL;

    Screen Producers Australia (the peak body for film and television producers in Australia);

    Australian Performing Rights Association (the copyright collecting society for owners of the copyright in musical works);

    Australian Record Industry Association and Phonographic Performance Company of Australia (PPCA) (respectively, the Australian industry association and copyright collecting society for the owners of the copyright in sound recordings);

    Viscopy (the Australian copyright collecting society for the owners of the copyright in artistic works);

    Australian Writers’ Guild (AWG) (representing script writers in film and television); and

    Australian Directors Guild (ADG) (representing directors of film and television).

8    Together, Mr Dickinson says, these organisations represent the ‘overwhelming majority of recipients of payments made by Screenrights for government copying’. Each organisation was provided with a copy of the Proposed Declaration as it was initially framed (Draft Proposed Declaration).

9    Mr Dickinson then wrote to government representatives of the Commonwealth and the six States and two Territories, to inform them of Screenrights’ intention to extend the Existing Declaration and provided each with the Draft Proposed Declaration. As a part of that consultation with the government representatives, Mr Dickinson explained, some amendments were made to the Draft Proposed Declaration (Second Draft Proposed Declaration) and the Second Draft Proposed Declaration was then provided to the representatives of affected copyright owners for further consideration.

10    As at 24 June 2015, the only party that expressed opposition to the Second Draft Proposed Declaration was AWG.

Advertisement

11    Pursuant to an order made by the Tribunal, on 15 July 2015, Screenrights placed an advertisement in national newspapers as to the Second Draft Proposed Declaration and invited any parties who wished to oppose the application to contact Screenrights’ solicitor by no later than 24 July 2015. On the same day, Mr Dickinson sent another email, which attached the advertisement, to the representatives of affected copyright owners as listed in [7], and received no substantive response.

12    Screenrights’ solicitor received some subsequent correspondence following publication of the advertisements. These included:

    iSentia, a media monitoring company, who requested and received a copy of the documents filed in the Tribunal on 15 July 2015. iSentia did not indicate any objection to the Second Draft Proposed Declaration.

    AWG, which originally opposed the Second Draft Proposed Declaration. On 31 July 2015, AWG confirmed that it did not wish to be made a party to the proceedings.

    the New South Wales Crown Solicitor’s Office (the Crown Solicitor), which appeared before the Tribunal on 11 August 2015 with the intention of being made a party to the proceedings. Following that directions hearing, Screenrights consulted with the Crown Solicitor and minor drafting changes were made to the Second Draft Proposed Declaration (this created the Proposed Declaration). On 27 August 2015, the Crown Solicitor indicated that she did not intend to be made a party to the proceedings.

Consultation after further amendment

13    As a result of the further amendment resulting in the Proposed Declaration, at the hearing of the application I directed Screenrights to notify the government representatives and representatives of affected copyright owners with which it had communicated previously, to notify them of the proposed amendments. Following this, Screenrights received some correspondence, which included:

    The Crown Solicitor, who was concerned that the date on which the Proposed Declaration would take effect was not specified. Screenrights replied that the Tribunal had noted that the correct date will appear on the orders as finally made.

    AWG, which asked Screenrights to redress uncertainty as to whether the further amendment, resulting in the Proposed Declaration, makes any substantive change other than ‘clarifying whether the [Proposed Declaration] covers communications and/or transmissions’. On 24 September 2015, Screenrights’ solicitor wrote to AWG stating that ‘The amendments do not involve any substantive changes. The intended effect is the same; namely, to cover government copying from all communications to the public including, the internet.’ As at 7 October 2015, there was no further correspondence from AWG regarding the Proposed Declaration.

    ADG, which asked Screenrights for confirmation on the impact that the proposed changed would have on its members. Following a conversation with Screenrights’ solicitor, ADG confirmed that they had ‘no comments on the [Proposed] [A]pplication’.

    PPCA, which was concerned that the Proposed Declaration would declare Screenrights ‘the society for government copying for both sound recordings and musical work across the board’. However, on 30 September 2015, PPCA confirmed it was ‘happy for the proposed drafting to proceed as planned.’

    ABC and the state of Tasmania, which had no further comments on the Proposed Declaration.

Amendment to the Application

14    Screenrights provided no evidence that the conditions of revocation of the Existing Declaration could be satisfied under s 153G(5) of the Act. Following the hearing, Screenrights sought leave to amend [1] of the Application to read:

This Application is made under sections 153F and 153G or, in the alternative, section 153J of the Copyright Act 1968 (Act).

(Amendment in bold)

15    Section 153J(3) of the Act provides:

If:

(a)    a declaration (the previous declaration) is in force under section 153F; and

(b)    the Tribunal makes another declaration under that section in relation to:

(i)    all government copies; or

(ii)    a class of government copies that includes all government copies to which the previous declaration relates;

the Tribunal must revoke the previous declaration.

16    It is more appropriate for Screenrights to apply for revocation of the Existing Declaration under s 153J(3) of the Act, as Screenrights seeks orders that the Existing Declaration be revoked and a new declaration be made under s 153F. Accordingly, I granted leave to Screenrights to amend the Application, as above. I also directed that notice of the amendment need not be advertised, pursuant to reg 18(2) of the Copyright Tribunal (Procedure) Regulation 1969 (Cth), as Screenrights had already advertised that it sought to revoke the Existing Declaration and the amendment merely altered the section under which it brought its application.

reasons for seeking new declaration

17    Mr Dickinson explained the reason for seeking an updated declaration. He explained that there have been ‘dramatic changes in communications technologies’ since the Existing Declaration was made. He pointed out that in 2000, the public Internet was a relatively recent phenomenon and that the communication of audio-visual material over the Internet was relatively rare. Since 2000, such communication has become commonplace. Further, broadcasters in Australia now routinely make available programming as either a simultaneous webcast, or for viewing or listening to at a later time. Many new platforms for communicating television-like services have been launched. In addition, a number of online audio-visual services have emerged, which have substantially increased the material available over the internet. Mr Dickinson gave as examples, YouTube, FetchTV and FOXTEL.

18    Mr Dickinson explained that, in his experience, government copying practices have followed the changes in technologies and that he regularly receives inquiries from government departments and agencies about such copying of audio-visual material from the Internet.

19    Mr Dickinson also pointed to the Explanatory Memorandum to the Copyright Amendment Act (No 1) 1998 (Cth) when the provisions for collecting societies to be declared for government copying were enacted. The relevant paragraphs of the Explanatory Memorandum set out the objectives of the scheme, as follows:

149.    Schedule 5 inserts amendments into the Act to streamline the system for owners of copyright in works and other subject matter to be paid when their materials are copied by Commonwealth, State and Territory governments.

150.    The amendments will enable the governments to avail themselves of an administratively simple procedure for calculating and making payments of equitable remuneration to copyright owners for the use of their copyright materials by the governments.

151.    The rights of the governments to use the copyright materials of others and the obligations associated with such use are set out in s 183 of the Act. The governments under s 183(1) may do any act comprised in the copyrights of others without infringement if the act is done for the services of government. There is an obligation under s 183(4) to inform the copyright owner (or agent) of the use of the copyright as soon as possible, unless it would be contrary to the public interest to do so. Section 183(5) provides for the determination of terms by negotiation between the copyright owner (or agent) and the government or, if negotiations fail, by the Copyright Tribunal.

152.    The amendments in Schedule 5 will vary the operation of s 183(4) and 183(5) of the Act to permit payments for the reproduction of copyright materials by a government to be made the basis of sampling, rather than the present method of full record-keeping under s 183, where there is a declared copyright collecting society. A relevant collecting society, which can be declared by the Copyright Tribunal in relation to all government copies or a class of government copies, will distribute the equitable remuneration to the owners of copyright in the material that has been copied and will hold in trust the remuneration for non-members who are entitled to receive it.

20    Mr Dickinson pointed out that if the copies that can now be made are outside the scope of the Existing Declaration, the statutory licence for government copying is more complex to administer which, in his opinion, is to the detriment of both government and copyright owners.

21    Screenrights submits that the technologically specific terms of the Existing Declaration make it likely that, unless it is varied in the manner proposed, its limiting effects will be exaggerated as further technologies emerge. Screenrights also points to the sampling requirements under s 183C of the Act and to Mr Dickinson’s evidence that uncertainty as to whether the Existing Declaration covers particular communications and/or transmissions makes the design and implementation of a government copying sampling scheme, as provided for in the Act, more difficult.

declaring a collecting society

22    The requirements of a collecting society for government copying are governed by s 153F of the Act, which provides:

(1)    A company limited by guarantee may apply to the Tribunal for a declaration that the company be a collecting society for the purposes of Division 2 of Part VII.

(2)    The parties to the application are the applicant and any person made a party by the Tribunal.

(3)    The Tribunal may make a person a party if:

(a)    the person asks to be made a party; and

(b)    the Tribunal thinks that the person has a sufficient interest in either or both of the following questions:

(i)    whether the applicant should be declared to be a collecting society;

(ii)    whether any current declaration of a company as a collecting society should be revoked.

(4)    After giving each party an opportunity of presenting its case, the Tribunal must:

(a)    declare the applicant to be a collecting society for the purposes of Division 2 of Part VII; or

(b)    reject the application.

(5)    A declaration of a company as a collecting society for the purposes of Division 2 of Part VII may be a declaration in relation to:

(a)    all government copies; or

(b)    a specified class of government copies.

(6)    The Tribunal may only declare the applicant to be a collecting society if the Tribunal is satisfied:

(a)    that the applicant is a company limited by guarantee incorporated under a law in force in a State or Territory relating to companies; and

(b)    in the case of an application for a declaration in relation to all government copies, that the applicant’s rules permit the owner, or the agent of the owner, of the copyright in any copyright material to become a member; and

(c)    in the case of an application for a declaration in relation to a class of government copies, that the applicant’s rules permit the owner, or the agent of the owner, of the copyright in any copyright material a reproduction of which in accordance with section 183 would be within that class to become a member; and

(d)    that the applicant’s rules prohibit the payment of dividends to its members; and

(e)    that the applicant’s rules contain such provisions about all of the following matters as are adequate for the protection of its members:

(i)    the collection of remuneration payable under section 183A;

(ii)    the payment of administrative costs of the collecting society out of remuneration it collects;

(iii)    the distribution of remuneration the collecting society collects;

(iv)    the collecting society holding on trust remuneration for owners of copyright in copyright material who are not members of the society;

(v)    access to the collecting society’s records by its members; and

(f)    that the applicant’s rules contain such other provisions as are required by the regulations to be included for the protection of members of the society.

(7)    A declaration must specify the day on which it takes effect.

(8)    If the Tribunal makes a declaration under this section, the Registrar must publish the declaration in the Gazette.

23    Screenrights is a company limited by guarantee (ss 153F(1) & (6)(a)). No person or entity has asked to be made a party to the proceedings. From the evidence, it is not necessary to make another person or entity a party to the application (ss 153F(2) and (3)). I am satisfied that each of the provisions of s 153F(6), as relevant to this application, have been complied with. As to the specific requirements of s 153F(6):

proposed declaration

24     The Proposed Declaration is as follows:

EFFECTIVE TODAY

THE TRIBUNAL

1.    DECLARES Screenrights to be the collecting society under section 153F of the Copyright Act 1968 for the purposes of Division 2 of Part VII in relation to government copies of the following classes of copyright material:

(a)    sound recordings;

(b)    cinematograph films;

(c)    television broadcasts or sound broadcasts,

(together Audio-Visual Items); and

(d)    works included in an Audio-Visual Item,

where the government copy was made:

(i)    from a communication to the public; or

(ii)    from any copy made from a communication to the public.

2.    REVOKES the declaration of Screenrights dated 4 May 2000.

25    The Proposed Declaration differs from the Existing Declaration, as the Proposed Declaration covers the situation where the government copy was made from “any copy” made from a “communication to the public”. Screenrights submits that the phrase “communication to the public” was used as a “broadcast”, which is defined under s 10 of the Act as ‘a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.’ Further, “communicate”, under s 10 of the Act, means ‘make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter, including a performance or live performance within the meaning of this Act.’ Accordingly, Screenrights says, this phrase was used because it covers the Existing Declaration and any other form of communication including sound broadcasts and television broadcasts.

26    That is, the Proposed Declaration replaces the Existing Declaration and, in effect, expands the source of the classes of copyright material to take account of changes in the technology of their dissemination.

27    In my view, it is appropriate to make the declaration. It follows that the Tribunal must revoke the Existing Declaration pursuant to s 153J(3) of the Act. I note that, under s 153F(7) of the Act, the declaration must specify the date on which it takes effect. The revocation of the Existing Declaration will take effect on the same date as the declaration (s 153J(4) of the Act). The revocation of the Existing Declaration and the taking effect of the Proposed Declaration will be the date of the make of the orders in this application. In accordance with s 153F(8), I will direct the Registrar to publish the declaration in The Australian Government Gazette. That publication should extend to the order for revocation (s 153J(5) of the Act).

Associate:

Dated:    16 October 2015