Audio-Visual Copyright Society Ltd v Foxtel Management Pty Ltd (No 4)

Audio-Visual Copyright Society Limited, represented by Screenrights, sought a determination of the amount of equitable remuneration payable by Foxtel Management Pty Ltd and other pay television retransmitters for the retransmission of free-to-air television programs. The dispute centred around the statutory licence granted to retransmitters under the Copyright Act 1968 (Cth) and the interpretation of 'equitable remuneration' in this context. The Tribunal was tasked with determining the admissibility and weight of evidence from a contingent valuation survey and overseas rates, and deciding on the meaning of 'equitable remuneration' and the appropriate approach to determining its amount.

The court had to decide whether the contingent valuation survey evidence was admissible and how much weight it should be given. Additionally, the court needed to assess the admissibility and weight of evidence concerning rates charged for retransmission in overseas countries. The meaning of 'equitable remuneration' and the appropriate approach to determining its amount, whether through a notional bargain or another method, were also critical issues. The court had to consider the parties to the notional bargain and the circumstances surrounding it, as well as the hypothetical bargain approach.

The court held that the contingent valuation survey evidence was admissible and should be given some weight, but not determinative. Evidence of overseas rates was also considered relevant and useful. The court found that 'equitable remuneration' referred to the amount that copyright owners and retransmitters would agree upon in a hypothetical bargain for the licence to retransmit. The court concluded that the notional bargain approach was appropriate, where the value of retransmission to subscribers, as perceived by the retransmitters, would govern the amount of licence fee offered. The court determined that the retransmitters could cease retransmission, but a licence to retransmit was beneficial as it allowed them to sell retransmission to subscribers. The court also noted that while there were some benefits to the retransmitters, such as acquiring a viewing public, these were not significant enough to alter the overall approach.

The court issued directions for the proceeding to be stood over for further mention and potential directions for the service of submissions on outstanding issues. The decision provided clarity on the admissibility and weight of evidence and the appropriate approach to determining equitable remuneration, setting a framework for future determinations in similar cases.