Audio-visual Copyright Society Limited –v- Australian Record Industry Association Limited
[2000] ACopyT 1
•20 January 2000
COPYRIGHT TRIBUNAL OF AUSTRALIA
Audio-visual Copyright Society Limited –v- Australian Record Industry Association Limited [2000] ACopyT 1
COPYRIGHT TRIBUNAL – government copying – whether “a specified class of government copies” under s153F(5) may be defined by reference to categories of copyright ownership – whether more than one collecting society may be declared for a single act of copying – Part VII Division 2 discussed in relation to copying of sound broadcasts and television broadcasts of recordings and films
Copyright Act 1968, ss153F – 153K, 182B – 183A, 183C
Phonographic Performance Company of Australia Ltd v Federation of Australian Commercial Television Stations (1998) 154 ALR 211 referred to.
Audio-Visual Copyright Society Limited –v- Australian Record Industry Association Limited
CT 1 of 1999
BURCHETT P
SYDNEY20 January 2000
IN THE COPYRIGHT TRIBUNAL
CT 1 OF 1999
APPLICATION BY:
AUDIO-VISUAL COPYRIGHT SOCIETY LIMITED for a declaration under s153F of the Copyright Act 1968
AUSTRALIAN RECORD INDUSTRY ASSOCIATION LIMITED
PartyTRIBUNAL
BURCHETT P
PLACE:
SYDNEY
DATE:
20 January 2000
THE TRIBUNAL answers the preliminary question set out in its reasons “No”.
IN THE COPYRIGHT TRIBUNAL
CT 1 OF 1999
APPLICATION BY:
AUDIO-VISUAL COPYRIGHT SOCIETY LIMITED for a declaration under s153F of the Copyright Act 1968
AUSTRALIAN RECORD INDUSTRY ASSOCIATION LIMITED
Party
TRIBUNAL:
BURCHETT P
PLACE:
SYDNEY
DATE:
20 January 2000
REASONS FOR DECISION
The applicant (“Screenrights”) seeks to be declared a collecting society for the purposes of Division 2 of Part VII of the Copyright Act 1968 (which is headed “Use of copyright material for the Crown”) -
“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 transmitted for a fee and a television transmission to subscribers to a diffusion service.”
The Party joined, Australian Record Industry Association Limited (“ARIA”), opposes the application with a view to seeking for itself, or a collecting society to be formed by it, a declaration in relation to sound recordings and cinematograph films that are music videos, however copies are made, including by the making of a copy of a transmission of a sound broadcast or a television broadcast. That a sound recording may be broadcast by the broadcast of a film incorporating the sound recording in its sound-track was established in Phonographic Performance Company of Australia Ltd v Federation of Australian Commercial Television Stations (1998) 154 ALR 211.
The competing application and proposed application reveal a fundamental difference of understanding of Part VII Division 2, to resolve which the parties agreed to ask the Tribunal to determine a preliminary question. They formulated this preliminary question as follows:
“In relation to the making of government copies of transmissions of sound broadcasts or television broadcasts (including, to avoid doubt, sound broadcasts, or television broadcasts, transmitted for a fee and television transmissions to subscribers to diffusion services) (“the government copying”), can there be declared under s.153F of the Copyright Act 1968 two collecting societies whereby:
(a)one collects equitable remuneration on behalf of the owners of copyright in sound recordings and cinematograph films that are music videos whose rights, but for s.183 of the Act, would be infringed by the government copying, and
(b)the other collects equitable remuneration on behalf of the owners of copyright in other copyright material whose rights, but for s.183 of the Act, would be infringed by the government copying?”
The basal issue to be determined is whether, in the contemplation of the Act, the making by government of a single copy of a broadcast or film or sound recording, or other form of copyright material, will engage the services of, and governmental obligations to, a single collecting society (as the Applicant contends), or whether these services and obligations may be split between two or more – for if two, why not more? – collecting societies representing separately the owners of the different species of copyright that may confer entitlements to equitable compensation in respect of the one act of copying (as ARIA contends). To put the matter in concrete terms, the separate owners with whose rights this case is concerned are the owners of the copyright in sound rcordings and cinematograph films (see ss 85 and 86 of the Act), on the one hand, and the owners of the copyright in television broadcasts and sound broadcasts (see s 87) on the other.
The context in which primarily the matter must be considered is relatively confined – Division 2 of Part VII and ss 148 and 153F to 153K. Division 2 begins with s 182B, by which “government copy” is defined to mean “a reproduction in a material form of copyright material made under subsection 183(1)”. That deceptively simple definition masks a number of difficulties. The key expression “reproduction in a material form” is given meaning, for some purposes of the Act, but not generally, in s 21, which includes, in subsections (1) and (3) (but subsection (3) is subject to subsection (4)):
“(1) For the purposes of this Act, a literary, dramatic or musical work shall be deemed to have been reproduced in a material form if a sound recording or cinematograph film is made of the work, and any record embodying such a recording and any copy of such a film shall be deemed to be a reproduction of the work.
………………………
(3) For the purposes of this Act, an artistic work shall be deemed to have been reproduced:
(a)in the case of a work in a two-dimensional form – if a version of the work is produced in a three-dimensional form; or
(b)in the case of a work in a three-dimensional form – if a version of the work is produced in a two-dimensional form;
and the version of the work so produced shall be deemed to be a reproduction of the work.”
“Material form”, “unless the contrary intention appears”, is stated in s 10(1), “in relation to a work or an adaptation of a work”, to include “any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced”. Although these guides to understanding have direct application only to the copying of copyright material that takes the form of a “work”, they may throw a reflected light on what the draftsman had in mind in other cases of copying. At least they show the concept of reproduction in a material form is not to be given a narrow interpretation. It covers the different known ways, and also ways as yet unthought of, by which a subject of a form of copyright may be re-embodied by a government for its own purposes.
But what precisely is meant, in the definition of “government copy”, by the expression “copyright material”? This expression is not left to the unaided understanding of the reader. It is the focus of a true definition, or rather a series of definitions, also to be found in s 182B(1):
“Copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast; or
(f)a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.”
I have referred to this as a series of definitions; that, it seems to me, is the effect of the repeated word “or”. “Copyright material”, for the purposes of the definition of a government copy, is any one of a series of things, each of which, of course, may be the subject of a kind of copyright, except that the last comprises special manifestations of the first.
The final ingredient of a government copy is its making under s 183(1), which provides:
“The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.”
Before the enactment of the Copyright Amendment Act (No.1) 1998, the copyright owner’s remedy, and the government’s obligation, in respect of the doing under s 183(1) of an act comprised in the copyright, were to be found in s 183(4) and (5). Under those provisions, the Commonwealth or the State generally had to “inform the owner of the copyright”, and that “as soon as possible”, of the doing of the act comprised in the copyright, and the terms for doing it were to be agreed, or fixed by the Tribunal. Now, so far as the making of a government copy is concerned, “if a company is the relevant collecting society… in relation to the copy”, a new, streamlined regime is substituted under ss 183A et seq. Section 183A is a central provision, subsections (1) to (4) of which I set out, as follows:
“(1)Subsections 183(4) and (5) do not apply in relation to a government copy (whenever it was made) if a company is the relevant collecting society for the purposes of this Division in relation to the copy and the company has not ceased operating as that collecting society.
(2)If subsection 183(5) does not apply to government copies made in a particular period for the services of a government, the government must pay the relevant collecting society in relation to those copies (other than excluded copies) equitable remuneration worked out for that period using a method:
(a)agreed on by the collecting society and the government; or
(b)if there is no agreement - determined by the Tribunal under section 153K.
(3)The method of working out equitable remuneration payable to a collecting society in respect of government copies (other than excluded copies) for a period must:
(a)take into account the estimated number of those copies made for the services of the government during the period, being copies in relation to which the society is the relevant collecting society; and
(b)specify the sampling system to be used for estimating the number of copies for the purposes of paragraph (a).
(4)The method of working out the equitable remuneration payable may provide for different treatment of different kinds or classes of government copies.”
It will be observed that s 183A(1) refers to “the relevant collecting society… in relation to the copy”. Of course, the singular may include the plural, but not if the context shows otherwise. This provision seems to imply there will be one particular relevant collecting society in relation to a particular copy. It is not just that “relevant collecting society” is in the singular; it is also preceded by the definite article. And subsection (2) requires the government to pay “the relevant collecting society”, not the society or societies, in relation to copies excluded from s 183(5). There is a provision identifying the relevant collecting society, but that does not detract from the point just made. I refer to s 182C:
“A company is the relevant collecting society in relation to a government copy if there is in force, under Division 3 of Part VI, a declaration of the company as the collecting society for the purposes of this Division in relation to:
(a) all government copies; or
(b)a class of government copies that includes the first-mentioned government copy.”
Indeed, s 182C reinforces the idea that there will be one relevant collecting society, either in relation to “all government copies”, or in relation to a particular “class of government copies that includes [a particular] government copy”. That is why s 182C refers to “the relevant collecting society”, whereas s 183A(3), speaking generally, refers to “a collecting society”.
There are further sections (ss 183B to 183E) which fill in the details of the scheme of Part VII Division 2. It is unnecessary to set these out. However, I note that, throughout, the draftsman is consistent in choosing the indefinite article where a reference to a collecting society is general, and the definite article where one particular society is pointed to. I also note – and counsel for the applicant put special reliance on this – that s 183C permits “the relevant collecting society” to require the government to allow “a person authorised in writing by the society” to carry out sampling at government premises, and the “government must take reasonable steps to ensure that the person who attends at the premises is given all reasonable and necessary facilities and assistance for carrying out the sampling”. Counsel’s argument has some force, that Parliament would have been unlikely to visit upon government officers a multiplicity of obligations of this kind in respect of the same class of copies, and moreover without providing any mechanism to co-ordinate them.
I turn to Part VI Division 3, and particularly to ss 153F to 153K, which (interpreted with the aid of s 148) contain the special powers of the Tribunal with respect to Part VII Division 2. Section 153F enables the Tribunal to declare a company limited by guarantee a collecting society for the purposes of Part VII Division 2. Section 153F(5) provides:
“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.”
Section 153F(6) provides, in part:
“The Tribunal may only declare the applicant to be a collecting society if the Tribunal is satisfied:
………………………
(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”.
It will be observed that s 153F(6)(c) refers to a reproduction of copyright material as being within a class of government copies; with respect to any copyright involved, its requirement is that the owner be permitted to become a member of the society.
Sections 153G and 153H may be passed over for present purposes. But s 153J is important. Subsections (1) and (3) of this section provide as follows:
“(1) If:
(a)a declaration (the previous declaration) is in force under section 153F; and
(b)the Tribunal, under that section, declares another company to be the collecting society for the purposes of Division 2 of Part VII in relation to a class of government copies that includes some of the government copies to which the previous declaration relates;
the Tribunal must amend the previous declaration so as to exclude from the government copies to which it relates all government copies to which the declaration of the company referred to in paragraph (b) relates.
………………………
(3) 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.”
These provisions make it quite clear that only one collecting society is to be declared in respect of any kind of government copies falling within the one class.
Finally, but importantly, s 153K empowers “[a] collecting society or a government” to apply to the Tribunal “for an order determining the method for working out remuneration payable under subsection 183A(2) for government copies made for the services of the government in a particular period”. What is significant is subsection (2):
“The parties to an application are the collecting society and the government”.
This plainly implies that no other collecting society will have any interest to be heard, which is quite inconsistent with another society being concerned in respect of the same acts of copying. It may be noted that, similarly, s 153G(1) does not contemplate that another collecting society may have an interest in a revocation application.
Although particular provisions are neutral, the tenor of Part VII Division 2, and of the relevant sections empowering the Tribunal to implement it, is contrary to ARIA’s concept of a category of copying split into separate classes to accommodate collection societies each confined to the interests of some only of the copyright owners affected by the copying. The Act’s remedy for any group of copyright owners is the requirement in s 153F(6)(c) that the society’s rules permit an owner membership, and the protective powers of the Tribunal, both with respect to the declaration of a collecting society (under s 153F), and with respect to the revocation of a declaration (under s 153G).
Essentially, what is critical to the operation of Part VII Division 2 is a class of government copies, not a class of rights constituting a form of copyright. The very fact that s 153F contemplates the possibility of a single society being declared for “all government copies” shows the tenor of these provisions. That one collecting society might represent various categories of copyright owners is not peculiar to Part VII Division 2: see s.135P in relation to Part VA.
I was referred, in argument, to the Explanatory Memorandum circulated by authority of the Attorney-General, Mr Williams, AM, QC, when the Copyright Amendment Bill 1997 (which became the Copyright Amendment Act (No.1) 1998) came before the Parliament. In the Outline with which this document commences, it is stated:
“The Bill:
………………………
·introduces a sampling scheme for copying done by governments to determine the amount of equitable remuneration to be payable to a relevant collecting society, instead of the present individual notification and payment to copyright owners;” (emphasis added).
Again, under the heading “FINANCIAL IMPACT STATEMENT”, reference is made to the effect of “introducing a sampling scheme concerning copying for the services of governments”. Of course, these statements blur the possibility that there may be different sampling schemes for different classes of copying, but they are certainly inconsistent with any contemplation of there being several collecting societies, each with a discrete statutory right to seek to set up a sampling scheme for the same acts of copying.
In the portion of the Explanatory Memorandum (commencing at p.39) introducing the new provisions with respect to government copying, the following paragraphs appear under the heading “Background”:
“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.”
One of the paragraphs that follow, dealing with the details of the legislation, is especially illuminating. In paragraph 158, referring to s 153F(5), it is stated:
“The provision for a specified class of government copies is intended to cater for the situation where a collecting society’s authority from its members to licence [sic] use of their works is limited to only some forms of reproduction, e.g. photocopying, and does not extend to others, e.g. digitisation.”
The emphasis in the Explanatory Memorandum on administrative simplicity and the emphasis (particularly in para. 158) on the type of copying as the basis of a class of copies, the ownership of “copyright in the material that has been copied” going, not to the defining of a class, but to the collecting society’s duty to “distribute the equitable remuneration to the owners”, strongly confirm the construction I had already reached upon the face of the relevant provisions of the Act.
For these reasons, I answer the preliminary question “No”.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Decision herein of the Copyright Tribunal constituted by Burchett P. Associate to the President:
Dated: 20 January 2000
Counsel for the Audio-Visual Copyright Society Ltd: Mr N Manousaridis Solicitor for the Audio-Visual Copyright Society Ltd: Mr L W Docker Counsel for the Australian Record Industry Association Ltd: Mr R Cobden Solicitors for the Australian Record Industry Association: Gilbert & Tobin Date of Hearing: 18 August 1999 Date of Decision: 20 January 2000
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