Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd

[2000] FCA 1486

FEDERAL COURT OF AUSTRALIA

Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd [2000] FCA 1486

COPYRIGHT – declaration of company as collecting society under s 153F of Copyright Act 1968 (Cth) for purposes of Division 2 of Part VII of that Act (use of copyright material for services of Commonwealth or a State) – whether only one collecting society may be declared in respect of an article produced by the one act of copying – whether an article produced by the one act of copying can embody more than one “government copy” as defined in s 182B of the Act – meaning of “a specified class of government copies” in s 153F of the Act.

Copyright Act 1968 (Cth) ss 153F, 182B, 182C, 183, 183A, 183C

Phonographic Performance Company of Australia Ltd v Federation of Australian Commercial Television Stations (1998) 195 CLR 158, referred to

Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd (2000) 47 IPR 40, referred to

AUDIO-VISUAL COPYRIGHT SOCIETY LIMITED v AUSTRALIAN RECORD INDUSTRY ASSOCIATION LIMITED

N 570 OF 2000

LINDGREN, LEHANE, GYLES JJ
23 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 570 OF 2000

IN THE MATTER OF A REFERENCE BY THE COPYRIGHT TRIBUNAL OF A QUESTION OF LAW ARISING IN PROCEEDINGS BEFORE IT:

BETWEEN:	AUDIO-VISUAL COPYRIGHT SOCIETY LIMITED (ACN 003 912 310) APPLICANT
AND:	AUSTRALIAN RECORD INDUSTRY ASSOCIATION LIMITED (ACN 002 692 944) AS PARTY TO THE APPLICATION

AND NUMBERED IN THE COPYRIGHT TRIBUNAL AS FILE NO 1 OF 1999

JUDGES:	LINDGREN, LEHANE, GYLES JJ
DATE OF ORDER:	23 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The following question referred to the Court under s 161 of the Copyright Act 1968 (Cth) for determination:

“Is there power in the Copyright Tribunal pursuant to section 153F of the Copyright Act 1968 to declare two companies to be collecting societies for the purposes of Division 2 of Part VII, for specified classes of government copies, with the effect that in relation to an article, being an article made under section 183(1) of the Act by the copying of a transmission of a sound broadcast or a television broadcast:

(a)one collecting society is entitled under section 183A(2) of the Act to be paid equitable remuneration in respect of the copyright in sound recordings, and cinematograph films that are music videos, reproduced in a material form in that article; and

(b)the other collecting society is entitled under section 183A(2) of the Act to be paid equitable remuneration in respect of the copyright in copyright material (within the meaning of section 182B(1) of the Act) other than sound recordings, and cinematograph films that are music videos, reproduced in a material form in that article?”

be answered

“No”.

AND THE COURT NOTES

The agreement of the parties that there be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 570 OF 2000

IN THE MATTER OF A REFERENCE BY THE COPYRIGHT TRIBUNAL OF A QUESTION OF LAW ARISING IN PROCEEDINGS BEFORE IT:

BETWEEN:	AUDIO-VISUAL COPYRIGHT SOCIETY LIMITED (ACN 003 912 310) APPLICANT
AND:	AUSTRALIAN RECORD INDUSTRY ASSOCIATION LIMITED (ACN 002 692 944) AS PARTY TO THE APPLICATION

AND NUMBERED IN THE COPYRIGHT TRIBUNAL AS FILE NO 1 OF 1999

JUDGES:	LINDGREN, LEHANE, GYLES JJ
DATE:	23 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LINDGREN J:

1. I have had the advantage of reading, in draft, the reasons for judgment of Lehane J and of Gyles J. I have found the question of construction posed a difficult one but have come to agree with their Honours that the revised question should be answered “no”. I am persuaded by particular reasons of their Honours and of Burchett J (his Honour’s judgment is reported at (2000) 47 IPR 40) which I will shortly identify.

2. ARIA (I will use the abbreviated forms of reference adopted by my colleagues and will not repeat the legislative provisions) submits as follows in its written submissions:

   “27.Plainly the use of the words ‘class of government copies’ indicates that the legislation recognises that within all government copies, separate categories or types of copies can be identified.

   28.Further, it is uncontroversial in copyright law that a single article might be a ‘copy’ of a number of different copyright subject-matters, resulting from the exercise of different copyright rights.  Thus a video cassette of a feature film will at once be a copy of the film itself (cf s. 86(a)), of the script for the film being a literary work (s. 31(1)(a)(i), read with s. 21(1)), of artworks filmed during the course of making the film (s. 31(1)(b)(i); and see s. 67) and of any sound recordings embodied in the sound-track to the film (s. 85(1)(a)).

   29.(That, in the case of a film, an article might embody both the film and sound recordings has been clear since Phonographic Performance Company of Australia v Federation of Australian Commercial Television Stations (1998) 195 CLR 158.)

   30.It follows that such a video cassette can be described as being a ‘copy (or reproduction) of a film’, a ‘copy (or reproduction) of a work’ and a ‘copy (or reproduction) of a sound recording’.  Equally it follows that such a single article simultaneously falls within the three classes of articles ‘copies of films’, ‘copies of works’ and ‘copies of sound recordings’.  Thus, in terms of ordinary use of language, there is nothing unusual, absurd or unreasonable in describing the one article as falling into several different classes of copies or reproductions.”

3. It is important, in order to understand ARIA’s submission, to remember, as the above passage makes clear, that it embraces the notion that a “government copy” is a physical thing. According to the submission, the one physical thing (or “article” to use the term adopted in the revised quotation) can embody two or more physical things, each of which satisfies the definition “government copy” found in s 182B of the Act. Some of Audio-Visual’s attacks on the construction suggested by ARIA lose their force once the attempt is made, as it must be consistently with ARIA’s submission, to see how the Act would operate in respect of “government copies”, understood as being not necessarily the whole physical article that results from the one act of copying, but smaller “units” or “categories” of physical thing. Thus, ARIA’s submission can accommodate the existence of only one collecting society in respect of a copy, for example, to take its video-cassette illustration referred to in the above passage, one collecting society in respect of the copy of the cinematograph film, one in respect of the copy of the literary work that is the script, one in respect of the copy of the artistic work, and one in respect of the copy of the sound recordings.

4. Nonetheless, the following considerations persuade me to think that a government copy is, indeed, the whole physical article that results from the one act of copying:

   · To my mind, the more natural meaning of a “copy” or a “reproduction”, in the context of the provisions with which we are concerned, is the physical thing produced by the one act of copying or reproducing. If the drafter had intended the physical thing resulting from the one act of copying or reproducing to embody more than one copy for present purposes, I would have expected more sophisticated provisions than ones based on the simple notion of a “copy” as used in subs 183A(1).

   ·    Prior to the amendments effected by the Copyright Amendment Act(No 1) 1998 (Cth) as from 30 July 1998, s 183 of the Copyright Act 1968 (Cth) provided for payment of equitable compensation by the Commonwealth or a State, as the case might be, to the owners of copyright in respect of the doing of acts comprised in the copyright and constituting an infringement of it. The amending Act could have proceeded from the same point of departure by providing for a “collecting society for all relevant copyright owners or for ¼ classes of relevant copyright owners” as s 135ZZB of the Act already did, but instead it provided for a collecting society in relation to “copies” (a “copy” is the result of one kind of infringement). This change of direction in the legislation suggests to me an intention that there not be multiple collecting societies merely because there were multiple copyrights infringed by the one act of copying. (In my view the contrast between the provisions in question and s 135ZZB is more pertinent than that suggested by ARIA between those provisions and subs 135(2).)

   · The sampling system provided for in s 183C could give rise to difficulty of implementation if there were more than one collecting society in respect of the one physical article produced by a single act of copying, and it is unlikely that this was intended, particularly in amendments designed to achieve simplicity of administration.

   · Paragraph 158 of the Explanatory Memorandum relating to the Copyright Amendment Bill 1997 (which became the Copyright Amendment Act (No 1) 1998) stated in relation to subs 153F(5):

   “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.”

   If classification by reference to classes of copyright material or copyright owner had been in contemplation, the obviousness of that basis of classification would probably have led to its being mentioned in the Explanatory Memorandum. 

5. The revised question should be answered “No” and, in accordance with the parties’ agreement, there should be no order for costs. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            23 October 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 570 OF 2000

IN THE MATTER OF A REFERENCE BY THE COPRYIGHT TRIBUNAL OF A
QUESTION OF LAW ARISING IN PROCEEDINGS BEFORE IT:

BETWEEN:	AUDIO-VISUAL COPYRIGHT SOCIETY LIMITED (ACN 003 912 310) APPLICANT
AND:	AUSTRALIAN RECORD INDUSTRY ASSOCIATION LIMITED (ACN 002 692 944) AS PARTY TO THE APPLICATION

AND NUMBERED IN THE COPYRIGHT TRIBUNAL AS FILE NO 1 OF 1999

JUDGES:	LINDGREN, LEHANE, GYLES JJ
DATE:	23 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LEHANE J:

1. I have had the advantage of reading, in draft, the reasons for judgment of Gyles J.  I need not repeat, or add to, his Honour’s account of the nature of this proceeding or of the relevant statutory provisions.

2. The revised question raises, as his Honour says, a short point of statutory construction.  It is not a question the elucidation of which is likely to be advanced by extended discussion.  It is very much one of impression and one on which, as both parties recognised, persuasive arguments might be put in favour both of the answer “yes” and of the answer “no”.  The crucial first step towards a decision between those answers is to construe the statutory definition of “government copy”.

3. “Government copy” is defined in s 182B(1) of the Copyright Act 1968 (Cth) to mean “a reproduction in a material form of copyright material made under subsection 183(1)”. The question of construction is, in substance, whether a government copy is the physical object which results from the act done “under” s 183(1) or, rather, the “reproduction” (or each of the several reproductions or copies) of copyright material (or of the several different copyright materials) which it embodies. To speak of a copy is ordinarily to speak of an object or thing. One copies or reproduces something; a copy or reproduction is the object or thing which results. For example, if what is copied is a cinematograph film, and the product of the copying is a second film which is for all intents and purposes identical with the original, the second film is naturally described as a copy (or reproduction) of the original (and, if made by an authorised person for government services, a government copy of it). Though the film may embody various copyright material – and could, as will appear, be classified by reference to the types of copyright material which it embodies – the second film is, according to the ordinary use of language, properly described as a copy (or a government copy) of the original: not as a copy (though it may include or embody a reproduction or copy) of a sound recording or of a literary, artistic or musical work. Both the terms of the definition itself and the way in which it is used in the relevant provisions (for example ss 153J, 182C and 183A(2), (3) and (6)) are consistent with that ordinary usage. The product of an act of reproduction done under s 183(1) may incorporate copyright material falling within several of the paragraphs of the definition of that term in s 182B. But it is nevertheless only one government copy.

4. The answer “no” to the revised question is required if, as a matter of construction of the Act, either of two statements is correct. One is that, by whatever other criteria the products of acts of copying, falling within s 183(1), might be classified for the purpose of making a declaration under s 153F(5), classification by reference to the type of copyright material reproduced or embodied in the product is not permissible. The other is that for any one such product (that is, any one physical object resulting from an act of copying) there may be only one “relevant collecting society” (s 182C) in relation to that particular product; in other words, it is not permissible to make a declaration which might result in any one government copy falling within more than one class of government copies.

5. There is nothing a priori surprising in one object falling within a number of classes depending on the method of classification used.  Objects may, for example, be classified by reference to size, shape or colour.  Similarly, that which falls within the class of “portrait” (as opposed, for example, to the depiction of an animal or a landscape) may be classified according to whether it is a painting, a drawing, a lithograph or a photograph; if a painting, it may be further classified according to whether it is done in oils, acrylic or water colour.  Where the objects under consideration are objects embodying copyright material, there is nothing a priori unexpected about a system of classification which discriminates by reference to the type of copyright material embodied.  Certainly there is nothing in the phrase “class of government copies” which literally requires, or even suggests, that result.

6. There is, as Gyles J points out, a significant difference between s 135ZZB(1) and s 153F(5). Whereas the former provides for the declaration of a body to be the collecting society for all relevant copyright owners or for such classes of relevant copyright owners as are specified, the latter contemplates a declaration of a company as a collecting society in relation to all government copies or a specified class of government copies. Thus, whereas we may take it that s 135ZZB contemplates classification by reference to type of copyright material (rather than literally classification by reference to type of copyright owner – for example, natural person or body corporate, Australian or foreign), the drafter of s 153F took – we should assume deliberately – a different approach, specifying declaration by reference to classes of copies rather than by reference to classes of copyright owners. But that, it seems to me, is at best equivocal in relation to the revised question. Why does the language used not indicate, rather than a deliberate decision to exclude classification by type of copyright material, an intention that any classification of government copies, which the Tribunal considers appropriate, is permissible? Counsel for the Audio‑Visual Copyright Society embraced, for example, par 158 of the Explanatory Memorandum to the Copyright Amendment Bill 1997 which explains, in relation to s 153F(5), that 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”. At the same time, the Society seeks from the Tribunal a declaration which would classify government copies not by reference to their physical form – or the mechanism by which they are made – but according to a description of what is copied (“a transmission of a sound broadcast or a television broadcast …”). But if it is permissible to classify by reference to what is copied, what is it about the language used which permits what is copied to be described by reference to its immediate source but not to the type (or types) of copyright material which it embodies? The inevitable answer, I think, must be “nothing”.

7. If that is correct, it follows that, if classification by type of copyright material copied is not permissible, it must be because, in relation to any one object resulting from a copying within s 183(1), there can be only one relevant collecting society. That is substantially the approach taken by Burchett P. Once it is accepted that a “government copy” is a physical object which results from an act of copying, then s 182C and s 183A(1) provide substantial support for that view. Section 182C speaks of “the relevant collecting society in relation to a government copy”, being a company which is declared to be “the collecting society … in relation to … a class of government copies that includes the first‑mentioned government copy”. Section 183A(1) excludes the operation of subs 183(4) and subs 183(5) in relation to a (particular) government copy if a company is “the relevant collecting society … in relation to the copy …”. Equally, as Burchett P points out, s 153J is important. That section contemplates that the Tribunal may declare a company to be the collecting society in relation to a class of government copies that includes some government copies covered by another declaration already in force; in such a case the earlier declaration must be amended to eliminate the overlap. Similarly (s 153J(3)), if a declaration is made which relates to all copies to which an earlier declaration relates, the earlier declaration must be revoked. Plainly, the intention is that there be only one collecting society for any one government copy.

8. It is at that point, in my view, that the argument in favour of the answer “yes” to the revised question encounters difficulties which must be regarded as fatal. A government copy being an object which results from the act of copying, its identity as a single copy remains even if it falls into a number of different classes of copies. Section 153J ensures that there will be no government copies in relation to which there is more than one collecting society. A video tape recording, made by a person authorised in writing by the Commonwealth or State for the services of the Commonwealth or State, may embody a reproduction of a cinematograph film and also a reproduction of a sound recording. But it does not comprise two separate government copies. It is one only, and may fall only within one class in relation to which a declaration is in force under s 153F.

9. For that reason, I agree that the revised question should be answered “no”.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             23 October 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 570 OF 2000

IN THE MATTER OF A REFERENCE BY THE COPYRIGHT TRIBUNAL OF A QUESTION OF LAW ARISING IN PROCEEDINGS BEFORE IT

BETWEEN:	AUDIO-VISUAL COPYRIGHT SOCIETY LIMITED (ACN 003 912 310) APPLICANT
AND:	AUSTRALIAN RECORD INDUSTRY ASSOCIATION LIMITED (ACN 002 692 944) AS PARTY TO THE APPLICATION
AND NUMBERED IN THE COPYRIGHT TRIBUNAL AS FILE NO 1 OF 1999
JUDGES:	LINDGREN, LEHANE, GYLES JJ
DATE:	23 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GYLES J:

1. The proceedings are for determination of a question of law referred to the Court by the Copyright Tribunal (“the Tribunal”). The reference followed the Tribunal (constituted by Burchett P) answering a preliminary question in relation to an application to the Tribunal by Audio-Visual Copyright Society Ltd (“Audio-Visual”) that it be declared a collecting society for the purposes of Div 2 of Pt VII of the Copyright Act 1968 (Cth) (“the Act”):

   “… 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.

   A “copy of a transmission” means a record embodying a sound recording of the transmission or a copy of a cinematograph film of the transmission;  and “making a copy of a transmission” means making a copy of the whole or a part of the transmission.”

2. The application was opposed by Australian Record Industry Association Limited (“ARIA”) on the basis that it (and an associated entity) intended to cause the formation of a new collecting society, and to cause that society to apply, pursuant to s 153F of the Act, that it be declared a collecting society for the purposes of Div 2 Pt VII of the Act in relation to the following classes of government copies:

   “A collecting society for the purposes of Division 2 of Part VII of the Act in relation to the following classes of government copies:

   (i)any copy of a sound recording;  or

   (ii)any copy of a cinematograph film that is a music video,

   however such copy is made (including by making of a copy of a transmission of a sound broadcast or a television broadcast, including (to avoid doubt) a sound broadcast, or a television broadcast, transmitted for a fee and including any television transmission to subscribers to a diffusion service).”

3. The question as referred gave rise to some difficulties which were discussed during the hearing.  As a result, the parties agreed upon a revised question and the Tribunal has referred that question to the Court in the following terms:

   “Is there power in the Copyright Tribunal pursuant to section 153F of the Copyright Act 1968 to declare two companies to be collecting societies for the purposes of Division 2 of Part VII, for specified classes of government copies, with the effect that in relation to an article, being an article made under section 183(1) of the Act by the copying of a transmission of a sound broadcast or a television broadcast:

   (a)one collecting society is entitled under section 183A(2) of the Act to be paid equitable remuneration in respect of the copyright in sound recordings, and cinematograph films that are music videos, reproduced in a material form in that article; and

   (b)the other collecting society is entitled under section 183A(2) of the Act to be paid equitable remuneration in respect of the copyright in copyright material (within the meaning of section 182B(1) of the Act) other than sound recordings, and cinematograph films that are music videos, reproduced in a material form in that article?”

4. The critical section of the Act is 153F(5):

   “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.”

5. By s 148 “government copy” has the same meaning as in Div 2 of Pt VII. In that Division, s 182B provides that “government copy” means a reproduction in a material form of copyright material made under subs 183(1). By the same section, “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.”

6. “Material form” is not defined otherwise than in relation to a work or an adaptation of a work and in that connection includes 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.  (Note also the definitions in s 10 of sound broadcast, sound recording, sound track, television broadcast and cinematograph film).

7. Section 183 deals with use of copyright material for the services of the Crown providing that copyright is not infringed by “doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State”.

8. Section 183(4) and (5) are as follows:

   “(4)Where an act comprised in a copyright has been done under subsection (1), the Commonwealth or State shall, as soon as possible, unless it appears to the Commonwealth or State that it would be contrary to the public interest to do so, inform the owner of the copyright, as prescribed, of the doing of the act and shall furnish him or her with such information as to the doing of the act as he or she from time to time reasonably requires.

   (5)Where an act comprised in a copyright has been done under subsection (1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal.”

9. Section 183A is as follows:

   “183A Special arrangements for copying for services of government

   (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.

   (5)Subsections (3) and (4) apply whether the method is agreed on by the collecting society and the government or is determined by the Tribunal.

   (6)      In this section:

   excluded copies means government copies in respect of which it appears to the government concerned that it would be contrary to the public interest to disclose information about the making of the copies.”

10. Section 182C provides:

    “182C Relevant collecting society

    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.”

11. Section 153F(6)(b) and (c) are as follows:

    “(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”

12. Whilst the question is now framed slightly differently, the decision of the Tribunal [2000] AcopyT 1, if correct, would require the Court to answer the question “no”. As the decision is now reported as Audio-Visual Copyright Society Limited v Australian Record Association Limited (2000) 47 IPR 40, it is unnecessary to set out the reasons for that decision, or the competing arguments considered by the Tribunal, at any length. The question is a short point of statutory construction, and turns on the meaning of the phrase “a specified class of government copies” in subs 153F(5).

13. Counsel for ARIA correctly submit that to copy, for example, a cinematograph film might be an act comprised in various copyrights within the meaning of s 183 of the Act. They then submit that in that case the copy could correctly be described as a copy of each separate copyright material.

14. Concurrent copyrights are illustrated by the decision of the High Court in Phonographic Performance Company of Australia Ltd v Federation of Australian Commercial Television Stations (1998) 195 CLR 158. Appeal was also made to the scheme of Pt VB of the Act, dealing with educational institutions, which provides for collecting societies to be appointed for classes of copyright owners (s 135ZZB). It was submitted that to construe the legislation as the Tribunal had would occasion much practical difficulty for copyright owners who were not really represented by the one authorised collecting society for the class of copies. Instead of a statutory right under s 183(4) and (5), a copyright owner would depend upon the administration of the rules of the collecting society. It was put that there was nothing in the legislation (or the extrinsic materials) to suggest that the amendments were intended to disadvantage holders of copyright.

15. There is much to be said for ARIA’s submissions (which were, of course, more extensive than the foregoing summary).  However, I conclude that the Tribunal decision was correct, substantially for the reasons it gave.  The essence of the Tribunal decision was that:

    “… 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”

    (par 13).

    The legislature could have chosen, as it did with Pt VB, to link the collecting societies with a class of copyright or copyright owner. There is, no doubt, much to be said for that as a matter of policy. There is also, no doubt, some disconformity in concept between subs 183A(1), which relates to a copy, on the one hand, and ss 183(1),(4) and (5), which relate to the act of copying, on the other. However, the nexus required by s 183A is between the collecting society and the copy, not copyright. The two are not the same. The copy is the end product in material form. The difference in language between subs 135ZZB(1) and subs 153F(5) also represents a real, and decisive, difference in meaning, which cannot be obliterated by construction.

16. The only qualification that may (on one reading) need to be made to the Tribunal decision is that it is not necessary to distinguish between classes of government copy solely on the basis of the method of copying. The only requirement is that the class of copy is able to be “specified”. It is also worth noting that the form of application before the Tribunal, which is substantially reproduced in par 1 above, does not seem to be drawn consistently with subs 153F(5) as I have construed it. That is not a matter which arises on this reference.

17. If there is merit in ARIA’s arguments as to the operation of the scheme as it stands, they should be directed to the legislature.  The question which has been referred should be answered no.  The parties are agreed that no order for costs be made.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             23 October 2000

Counsel for the Applicant:	JM Ireland QC and NL Manousaridis
Solicitor for the Applicant:	L Docker of Audio-Visual Copyright Society
Counsel for the Respondent:	AJ Bannon SC and R Cobden
Solicitor for the Respondent:	Gilbert & Tobin
Date of Hearing:	11 August 2000
Date last submission received:	14 August 2000
Date of Judgment:	23 October 2000