The High Court has today handed down its decision in Phonographic Performance Company of Australia Limited (PPCA) & Ors v Commonwealth of Australia & Ors.

The case concerns the cap in the Copyright Act 1968 for royalties payable for the radio broadcast of sound recordings. While price caps are a common form of economic regulation, the caps in the Copyright Act are unusual in that they are not underpinned by any discernable economic formula. For example, the cap for commercial radio broadcasts is 1% of the gross earnings of the broadcaster (section 152(8)(b)).

The Howard Government had announced its intention to lift the cap on broadcast royalties for sound recordings as part of its 2006 amendments to the Copyright Act. However, this change did not appear in the final draft of amendments.

PPCA, the copyright collecting society representing owners of copyright in sound recordings, brought the matter to the High Court. They argued that the inclusion of the cap in the 1968 Act amounted to an acquisition of the property of the owners of copyright in sound recordings other than on “just terms” and was therefore in contravention of section 51 (xxxi) of the Constitution. The Defendants (the Commonwealth, Commercial Radio Australia and the ABC) argued that there was no acquisition of property given that the legislation in force prior to the 1968 Act did not create a broadcast right. They further argued that even if there was an acquisition of property, it was consistent with the kind of adjustment envisaged by s 51(xxxi) of the Constitution.

The High Court has today confirmed the constitutional validity of the cap.

You can read the High Court’s decision here:

http://www.austlii.edu.au/au/cases/cth/HCA/2012/8.html

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The Federal Court has today handed down its decision in Allam v Aristocrat

Technologies Australia Pty Ltd [2012] FCAFC 34.

The case considers infringement by dealing and damages under s 1115 of the

Copyright Act 1968.

The full decision is available here:

http://jade.barnet.com.au/Jade.html#article=262616

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The Federal Court has ruled that a US woman pay damages of $147,000 plus costs for her unjustified threats of legal action against an Australian indigenous artist and his agent.

The woman had assisted the artist in making some film footage for which she was paid. She then claimed she owned copyright in the footage and through a US law firm, sent threatening letters to the artist and his agent, a gallery owner.

The threats did not take into account the Australian law and no legal action was commenced. In determining the amount of damages the court took into account evidence that the film trailer was removed from public exhibition, which meant that the artist lost the opportunity to exploit the work at an advantageous time.

Read the full case here:

http://www.austlii.edu.au/au/cases/cth/FCA/2012/246.html

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This morning’s appeal hearing in the Full Federal Court begins round two of the litigation between the AFL, NRL and Telstra against Optus, over its TV Now service.

Finn, Emmett and Bennett JJ will be hearing submissions from the parties. Additionally, Screenrights has sought leave to intervene in the appeal.

The Federal Court declared Optus’ TV Now service legal earlier this year, allowing Optus to record and then stream free to air broadcasts to its users via its cloud without needing permission from broadcasters.

For a detailed recap of the developments so far, see our article at:

http://copyright.org.au/news-and-policy/details/id/2045/

See the court list at:

http://courtlists.fedcourt.gov.au/courtlistings.aspx?id=1

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The issue of convergence is a hot topic with the Australian Government undertaking its investigation into the policy and regulation of converging media and communications technologies. Against this backdrop, a number of interesting copyright disputes are currently being played out including, most notably, the recent Optus TV Now case. In another dispute this month regarding broadcast rights, the Copyright Tribunal has heard an application brought by Screenrights in relation to the amount of royalties payable for the retransmission of free-to-air digital channels via Foxtel.

Screenrights administers the retransmission right contained in Part VC of the Copyright Act 1968. Provided royalties are paid to the relevant collecting society, it is not an infringement to retransmit free-to-air broadcasts in Australia [1].

The application relates to determining the amount of royalties that should be payable for the retransmission of the new multi-channels that have emerged such as Go! and 7Two.

The Copyright Act states that the amount of equitable remuneration payable to the collecting society is the “amount determined by agreement between the retransmitter and the collecting society or, failing such agreement, by the Copyright Tribunal on application made by either of them [2].

As yet, Screenrights and Foxtel have been unable to agree on an appropriate amount for these multi-channels.

The application follows on from an earlier Tribunal decision back in 2006, which determined the amount payable for the retransmission of primary television channels like Seven, Nine and Ten [3].

Read the 2006 decision here:

http://www.austlii.edu.au/au/cases/cth/ACopyT/2006/2.html

[1] Section 135ZZK of the Copyright Act 1968

[2] Section 135ZZM(1) of the Copyright Act 1968

[2] Screenrights statement dated 30 January 2012.

http://www.screenrights.org/sites/default/files/uploads/MRS_SRvFoxtel-CommsStatement_0112.pdf

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Like other cases covered in this newsletter, the recent decision of Justice Foster of the Federal Court in Phonographic Performance Company of Australia Ltd (PPCA) v Commercial Radio Australia Limited (CRA) [1] illustrates some of the copyright issues raised by new delivery platforms. The issue here related to the streaming of radio programs.

PPCA is the copyright collecting society representing copyright owners and recording artists in relation to the broadcast, communication to the public and public performance of recorded music in Australia. CRA is the industry body representing commercial radio broadcasters in Australia. The question for the Court’s consideration was whether the existing licensing arrangements between PPCA and CRA and its members covered the simultaneous broadcast and streaming via the Internet of radio programs. PPCA argued that the streaming was not covered and comprised a separate communication to he public. CRA argued that the simultaneous streaming of radio programs was covered by the existing agreement.

The agreement between PPCA and CRA was made shortly before the amendments which introduced the technology neutral right of “communication to the public” in to the Copyright Act 1968. Perhaps it was their awareness of the impending reforms that caused the parties to incorporate the Copyright Act definition of broadcast (as amended from time to time) into their agreement. The decision is therefore largely concerned with the meaning of “broadcast” as defined in the Copyright Act.

During the course of his judgment, Foster J observed [at paras 110-111]

‘The amendments effected by the Digital Amendment meant that the exclusive right granted to the copyright owner or licensee pursuant to s 85(1)(c) of the Copyright Act was considerably expanded from 4 March 2001. It now clearly covers the right to make available a sound recording in respect of which copyright subsists via the Internet.

Nonetheless, that expanded right also includes (or has subsumed) the right to broadcast the sound recording. The concept of “communicate” as defined in s 10(1) covers broadcasting.’

His Honour went on to find that the simulcasting of radio programs by CRA members was one service and therefore fell within the existing licensing arrangements of the parties.

While the decision is largely confined to the particulars of the agreement between PPCA and CRA it provides an interesting examination of the meaning of “broadcast” under Australian copyright law. And for those of us less technically savvy, it also provides a useful explanation of radio broadcasting and Internet steaming. At the time of writing it is not known whether PPCA plans to appeal the decision.

[1] Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)

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