The end of the trilogy: PPCA and section 154(1) in the Copyright Tribunal
On 22 November, the Copyright Tribunal handed down its third and hopefully final determination in the long-running dispute between the Phonographic Performance Company of Australia (PPCA) and Foxtel. The dispute relates to the royalties payable for the broadcast of sound recordings by Foxtel.
This case has been ongoing since 2012: the Tribunal made its primary decision in May 2016, and handed down a further determination earlier this year in relation to issues including pay-per-view revenue, the powers of the Copyright Tribunal, and issues associated with streaming on demand, among other things.
In this last decision of 2017, the Tribunal deals with some final, and rather technical, outstanding issues between the parties.
With regards to payments, PPCA and Foxtel managed to reach an agreement about the transition from its previous payments-per-subscriber-per-month model, to the new revenue model approved by the Tribunal. The Tribunal also accepted Foxtel’s submissions regarding the fees collected by the PPCA when Foxtel sub-licenses material to a third party.
This decision had drafting implications in respect of the scheme between PPCA and Foxtel: there was a dispute as to whether a warranty and indemnity should be provided by PPCA. While the parties agreed that PPCA should not be required to warrant that it has title to the recordings captured by the scheme, the Tribunal was asked to decide whether PPCA should be required to provide an indemnity.
The Tribunal found that PPCA should not be required to provide an indemnity, and noted that the proposed clauses of the scheme clearly outlined the fact that PPCA does not have the ability to licence certain recordings, as well as the fact that the Tribunal had earlier decided that PPCA would be required to licence such recordings.
The long-running nature of this case, and the finer technical details on dispute between the parties and which the Tribunal had to determine, is an illustration of the complexities broadcasters and creators face in navigating the constantly evolving digital market.
Decision: Phonographic Performance Company of Australia Limited under s 154(1) of the Copyright Act 1968 (Cth) (No. 3)  ACopy1 2 (22 November 2017)