Posts Tagged ‘PPCA’

Licensing recorded music

Monday, February 18th, 2013

While the European Commission is trying to reduce the number of licensors you have to deal with (and so reduce transaction costs), the Australian legislation as interpreted by the courts is causing them to proliferate:

IPKat on Max Planck comments on draft directive on collective rights management

Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited [2013] FCAFC 11

Yes, I know the EU is grappling with territorial issues and not, or not just, subject matter issues and, if someone were trying to set up an umbrella licence in Australia, it would be important to know who had what rights to include, but …

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PPCA v Commonwealth

Friday, March 30th, 2012

The High Court has rejected the constitutional challenge to the validity of the “1%” cap on licence fees payable by broadcasters to the record companies on very narrow and specific grounds.

Section 109 of the Copyright Act 1968 provides a compulsory licence for the broadcasting to the public of sound recordings. Section 152, however, caps the royalty payable to record companies by broadcasters at 1% of the gross earnings of the broadcaster.

No such limitation had applied to the “corresponding” copyright in sound recordings under the 1911 Act.

The 1911 Act was repealed when the 1968 Act came into force on 1 July 1969. Section 220 of the 1968 Act provided that sound recordings in which copyright subsisted immediately before 1 July 1969 qualified for copyright under the 1969 Act effectively as provided for under the 1968 Act.

The record companies argued that the imposition of the 1% cap was an acquisition of their property in sound recordings made before July 1969 otherwise than on just terms in contravention of s 51(xxxi) of the Constitution.

The High Court has unanimously rejected that claim.

French CJ, Gummow, Hayne and Bell J said the record companies’ argument was predicated on a wrong assumption. They no longer owned copyright under the 1911 Act which had been qualified. Rather that copyright had been terminated and replaced with a new and different copyright under the 1968 Act. So at [10] and [11]:

[10] The assumption by the plaintiffs is that the copyright presently enjoyed in respect of the pre?1969 recordings, and which will expire in accordance with the extended term fixed by the operation of the Free Trade Act upon the 1968 Act, is that which arose under the 1911 Act and was carried forward by the 1968 Act, but with the impermissible imposition upon those copyrights of the “cap” in the compulsory licensing system introduced by the 1968 Act. The Commonwealth denies that assumption. The Commonwealth submission, which should be accepted, is that upon the proper construction of the 1968 Act: (a) copyrights subsisting in Australia on 1 May 1969 under the Imperial system were terminated; (b) thereafter, no copyright subsisted otherwise than by virtue of the 1968 Act; and (c) to that copyright in respect of sound recordings there attached immediately the compulsory licensing system including the “cap” upon the royalties payable thereunder.

[11] It should be emphasised that the plaintiffs do not assert that the 1968 Act is invalid by reason of its bringing to an end the operation in Australia of the Imperial system without the provision of just terms. To do so successfully would be to leave them with such rights in respect of the pre?1969 recordings as they had under the 1911 Act and the 1912 Act, and without any copyrights subsisting under the 1968 Act. Rather, the plaintiffs seek to attack the validity of the attachment to their rights under the 1968 Act of one aspect of the compulsory licensing system for sound recordings. For the reasons which follow, that attack must fail.

Heydon J to similar effect at [63]:

In short, the 1968 Act did not preserve the second to sixth plaintiffs’ rights under the 1911 Act and the 1912 Act. It abolished those rights. It substituted for them distinct and fresh rights – some more advantageous to those plaintiffs, some less. Thus ss 109 and 152 did not cause any property to be acquired. Property may have been extinguished by other provisions, but the plaintiffs’ case was not concerned with them.

After considering the application of s 51(xxxi) of the Constitution to statutory intellectual property rights generally, Crennan and Kiefel JJ reached the same conclusion at [129], pointing out at [130] that the record companies could not accept s 220 of the Copyright Act as valid and at the same time contend that ss 109 and 152 were invalid.

[129] When ss 8, 31, 85, 89(1), 207 and 220(1) of the 1968 Act are read together, it is clear that the copyright of the relevant plaintiffs under the 1911 Act, which included the exclusive right to perform the record in public, is not continued under the 1968 Act; rather it is replaced. Whilst it is true that, as the plaintiffs submit, certain records in which copyright subsisted under the 1911 Act are brought within the scheme of the 1968 Act, that is achieved by the re enactment, in substance, of qualifying provisions in the 1911 Act in, and for the purposes of, the 1968 Act. The effect is that the plaintiffs’ entitlement to sue for infringements under s 101 of the 1968 Act in respect of sound recordings in which copyright subsists pursuant to s 89(1) is an entitlement to sue in respect of infringements of the copyright in sound recordings contained in s 85, which replaces the copyright in records under s 19(1) of the 1911 Act. Inasmuch as ss 109 and 152 operate to qualify a record manufacturer’s exclusive rights by providing an exception to infringement, it is the exclusive rights under s 85 which are affected, not the exclusive rights under the 1911 Act (which have been replaced).

[130] Whilst the plaintiffs mount no attack on the validity of provisions of the 1968 Act which effect the replacement of the relevant plaintiffs’ copyright under the 1911 Act with a copyright under the 1968 Act, their attack on the validity of ss 109 and 152, which depends on the continuing subsistence of copyright under s 19(1) of the 1911 Act, is untenable. If the plaintiffs were to attack the validity of the provisions of the 1968 Act which effect the replacement of copyright under s 19(1) of the 1911 Act with a differently constituted copyright under s 85 of the 1968 Act, they would risk being left not only with the awkwardly expressed copyright under s 19(1) of the 1911 Act in respect of records, but also with a copyright, the term of which was limited to 50, rather than 70, years.

Now the High Court have reminded themselves of all these matters, they will be primed for the tobacco companies challenge to the validity of the Tobacco Plain Packaging Act 2011, the hearings for which start in April.

Phonographic Performance Company of Australia Limited v Commonwealth of Australia [2012] HCA 8

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Simulcasting radio broadcasts over the internet

Wednesday, February 15th, 2012

Foster J has ruled that radio stations do not have to pay an additional licence fee to the record companies for simultaneously transmitting their radio broadcasts over the internet.

If you want to understand how recorded music is licensed to the radio stations, this is a good place to start.

The broadcasting of recorded music over the “airways” by the commercial radio stations is covered by licence agreements with PPCA. When the radio stations broadcast recorded music as part of a “program”, the audio stream is split between the FM and DAB+ radio bands and a webcast service; that is, the audio stream is sent to 3 different distribution means.

In deciding what is comprehended within the broadcast right under the Copyright Act (see ss 85(1) and 10(1)), it is necessary to determine what is included in a “broadcast service” under the Broadcasting Services Act. The relevant Ministerial Determination under this legislation excluded from the definition of “broadcasting service”:

.. [any] service that makes available television programs or radio programs using the Internet

but then excepted from that:

… [any] service that delivers television programs or radio programs using the broadcast services bands.

Foster J considered this definition required him to focus on what was “the service” and not just the means of transmission:

130 The service which transmits the very same radio programs at essentially the same time both to the FM transmitters and beyond and to the web stream servers and beyond is the one service. On the facts before me, the members of CRA who stream their radio programs on the Internet do so only as part of a program package which also simultaneously transmits those programs via frequency modulated radio waves to the consumer’s FM receiver. In truth, the service is but one service being a service which combines various delivery methods or platforms and which delivers the same radio program using the broadcasting services band. It falls within the exception to the exclusion set out in the Ministerial Determination.

131 Therefore, in my view, the service provided by the members of CRA is a broadcasting service.

132 That being so, the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement.

Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93

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Recorded music royalties at the gym

Monday, May 17th, 2010

The Copyright Tribunal has ordered a very significant increase in the licence fees payable by fitness clubs for the use of recorded music.

At this stage, there seems to be press reports only:

The old fee was 96.8c per person attending the class, capped at $2654 per year. The new fee will be $15 per class or $1 per attendee.

This is just the fee payable to the record company, not the fee for the composition payable to APRA.

Presumably it follows on the striking recalibration effected in the Hotels case.

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ASCAP, AT&T and ringtones

Thursday, July 9th, 2009

ASCAP is suing AT&T in the USA for copyright infringements when an AT&T subscriber’s phone plays a ringtone. ASCAP is a collecting society for public performance and broadcast rights. It alleges that when the subscriber receives a phone call in, say, a restaurant and the phone plays a ringtone it is a performance in public that needs a licence.

Fred Lohman from the EFF says this claim is doomed in America. Their copyright act has §110(4) that excludes from the public performance right ‘performances made “without any purpose of direct or indirect commercial advantage.”‘

Why wouldn’t Telstra or Optus or, for that matter, Apple be liable in Australia if APRA or PPCA came calling?

We don’t have a §110(4) so, if you were in a restaurant or walking down Collins St in rush hour and your phone started playing a ringtone you had installed, you the phone owner wouldn’t be able to use Fred Lohman’s escape clause.

So could the phone company or Apple or whoever sold you the ringtone potentially be liable for authorising your infringement (if it be an infringement)? If we are still living in the world where Telstra was liable for the music on hold played by users of Telstra’s network (before the Act was changed by the Digital Agenda Act), the question doesn’t seem so fanciful?

The phone company or whoever could presumably be liable only on the basis of authorising the phone user’s conduct which would have to be infringing in itself. Now, liability for authorisation may not be a foregone conclusion; but in Cooper, the ISP was liable at least in part because it could have prevented the website even operating. Would it make a difference if the alleged authoriser just provided the phone or the ringtone?

One argument might be that if you, the subscriber, paid for and downloaded something described as a “ringtone”, there must be an implied licence. Maybe. But in an awful lot of cases, the person who can give you rights to download and store the ringtone on your phone will not have rights to license the performance right – that right will have been assigned to, you guessed it, APRA or another collecting society. Although APRA and AMCOS now seem to be “almost” the same entity.

Surely, a court would find that, although the ringtone might be heard incidentally in public by unwitting passersby or bystanders, the playing of the ringtone was really in private? Well, maybe. But then why have those exceptions in the Act for incidental uses of things like artistic works in public places (s 65) or reading or recitation of reasonable portions of published literary or dramatic works (s 45)? (At least, you wouldn’t have to pay a licence fee for the lyrics!) and making temporary copies as part of a technical process of use (s 111B)? And there is a specific statutory licence for the playing in public of sound recordings (s 108).

Maybe a court could be persuaded to look a little more liberally at whether or not a ringtone is a substantial part of the original recording? A ringtone afterall can only be 30 seconds in duration. This seems very unlikely given that 8 bars of  Colonel Bogey infringed.

Is there something wrong with the way we legislate specific exceptions for specific technological problems?

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