on 3 May 2006, the Copyright Tribunal delivered its decision about the rate payable for retransmission of free-to-air broadcasts.

Screenrights, a copyright collecting society whose members are owners of copyright in film, asked the Copyright Tribunal to determine the amount of equitable remuneration payable to it under the Copyright Act’s Part VC statutory licence, for the retransmission of free-to-air broadcasts. The parties had already agreed on a record keeping system. Screenrights represents the copyright owners of works, sound recordings and cinematograph films but not television or sound broadcasts. The respondents were Foxtel Management Pty Ltd, Optus Vision Media Pty Ltd, and Austar Entertainment Pty Ltd, providers of pay TV in Australia, which often included, in a pay TV package, the retransmission of free-to-air broadcasts.

The Tribunal considered its previous approaches to “equitable remuneration” such as “market rate”, “comparable bargains”, notional bargain rate” and “judicial estimation”. Screenrights argued for a new “social gain” approach, with which the Tribunal disagreed, and Screenrights also relied on a contingent valuation survey. The retransmitters had previously, and unsuccessfully, attempted to prevent the survey being admitted into evidence.

The Tribunal decided to refer to the notional bargaining process, overseas rates (if appropriate) and commonsense, and to place no weight on the survey.

Evidence of the rates paid by some overseas retransmitters (in the United States, Canada, the United Kingdom and Europe) is summarised, including relevant sections of their Copyright Acts. The Tribunal, however, decided that it could not be assisted by the US or Canadian comparisons, and was not confident that it could rely on European remuneration rates as providing comparable bargains.

In the end the Tribunal said that it arrived at its figure of equitable remuneration from “careful estimation and evaluation”, including its appreciation of the likely value that subscribers would see in the benefits of better free-to-air television reception and the ability to use a single remote control. This figure was 22.5 cents per subscriber per month, net to Screenrights. The parties have the opportunity to make futher submissions on four issues: the amount paid when fewer than the five free-to-air channels are transmitted; retrospectivity; phasing in of payments; and CPI indexation.

[2006] ACopyT 2 (3 May 2006)

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