Australasian Performing Right Association Limited v Parry
[2023] FedCFamC2G 498
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australasian Performing Right Association Limited v Parry [2023] FedCFamC2G 498
File number(s): SYG 653 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 June 2023 Catchwords: INTELLECTUAL PROPERTY – Practice and procedure – application for default judgment based on statement of claim alleging infringement of copyright in literary and musical works – whether on the face of the statement of claim the applicant has established an entitlement to relief for infringement of copyright – whether it is appropriate to grant declaratory and injunctive relief – whether it is appropriate to assess damages on the basis of the licence fee that would have been paid to the applicant – whether additional damages should be ordered – relief granted. Legislation: Copyright Act 1968 (Cth) ss 115(2), 115(4), 126
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 211
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04(2), 13.05, 13.06(2)
Cases cited: Australasian Performing Right Association Limited v Escape Bar & Night Club Pty Limited & Anor [2017] FCCA 2690
Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472
Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2016] FCAFC 22
Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (No 3) [2014] FCA 909
Division: General Number of paragraphs: 33 Date of hearing: 8 June 2023 Place: Sydney Solicitor for the Applicant: Mr B John of Banki Haddock Fiora, by telephone The Respondent: No appearance by, or on behalf of, the respondent ORDERS
SYG 653 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED (ACN 000 016 099)
Applicant
AND: KENNETH JAMES PARRY
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 JUNE 2023
THE COURT DECLARES THAT:
1.The respondent infringed the applicant’s copyright in the following musical and literary works (Works):
(a)Goodna (lyrics and music) written by Judson Jack Campbell;
(b)From Hell (lyrics and music) written by Sean Michael Millar;
(c)Future Lady (lyrics and music) written by Sean Michael Millar and James Dean Jackson; and
(d)To the Moon and Back (lyrics and music) written by Daniel Jones and Darren Stanley Hayes,
by:
(e)on 5 April 2019, without the licence of the applicant, performing the works referred to in (a) by means of background music in the course of a business (Business) the respondent conducted under the name of “King Lear’s Throne” at Unit 3, 693 Ann Street, Fortitude Valley, Queensland (Premises); and
(f)on 11 May 2019, without the licence of the applicant, performing the works referred to in (b), (c), and (d) by means of live performance in the course of the Business conducted on the Premises.
THE COURT ORDERS THAT:
2.The respondent, by himself or his agents, is restrained from:
(a)performing in public without the licence of the applicant the Works;
(b)performing in public without the licence of the applicant the musical and literary works referred to or included in the schedule to these orders (APRA Repertoire Works); and
(c)authorising the performance in public of any of the Works or any of the works contained in the APRA Repertoire Works.
3.Judgment for the applicant in the sum of $2,494.33.
4.Pursuant to s 115(4) of the Copyright Act 1968 (Cth), judgment for the applicant in the sum of $40,000.
5.The respondent pay the applicant’s costs set in the amount of $10,007.70.
SCHEDULE
APRA REPERTOIRE
The applicant:
(a)owns the copyright in respect of its application to the performance in public; and/or
(b)has the power to grant licences for the performance in public,
of practically all musical and literary works performed throughout Australia. The repertoire comprises the works written by members of the Applicant – who constitute more than 110,000 composers, authors and publishers of music – and members of affiliated societies in countries throughout the world.
The Applicant has carried on business as an association of composers, authors and publishers of music for the purpose of licensing the public performance of musical and literary works since 1926.
The Applicant maintains a catalogue of its repertoire. The catalogue lists the works in which the Applicant owns the right of performance of the works in public. At present there are more than 10 million works listed in the catalogue. The items in the catalogue may be inspected by arrangement with the Applicant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (APRA) applies under r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) for default judgment against the respondent on causes of action based on the Copyright Act 1968 (Cth) (CopyrightAct).
RELEVANT RULES
Paragraph (c) of r 13.05(2) of the GFL Rules applies to a respondent who “is in default”. Under r 13.04(2) of the GFL Rules, a respondent is in default if the respondent has not satisfied APRA’s claims, and the respondent has failed to do any one or more of the things identified in r 13.04(2)(b) of the GFL Rules. The things identified in r 13.04(2)(b) that are relevant to the application before me are the failure to give an address for service before the time for doing so has expired, the failure to file a response or defence before the time for doing so has expired, and the failure to defend the proceedings with due diligence. Also relevant is r 13.06(2) of the GFL Rules, which provides that the Court may, among other things, make an order of the kind mentioned in r 13.05(1), (2) or (4), if a party to a proceeding is absent from a hearing.
When a respondent is in default, or when a respondent is absent from a hearing, the Court may make one of the orders set out in r 13.05(2) of the GFL Rules. Relevant to the application before me is r 13.05(2)(c), which provides that the Court may:
if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings – give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant . . .
APRA submits the respondent is in default and, because it commenced the proceeding by an application supported by a statement of claim, APRA applies under r 13.05(2)(c) of the GFL Rules for a declaration that the respondent has infringed APRA’s copyright, an injunction restraining the respondent from future infringements of copyright, compensatory damages under s 115(2) of the Copyright Act, and additional damages under s 115(4) of the Copyright Act. APRA also claims interest and costs.
I have set out elsewhere (Earlier APRA Judgment) the principles that govern the exercise of the power to make orders pursuant to r 13.05(2)(c) of the GFL Rules, and also the elements of a cause of action for infringement of copyright.[1]
[1] Australasian Performing Right Association Limited v Escape Bar & Night Club Pty Limited & Anor [2017] FCCA 2690, at [13]-[30]. I there considered the equivalent rules of the Federal Circuit Court Rules 2001 (Cth).
APRA’S CLAIMS AND PROCEDURAL HISTORY
APRA commenced this proceeding by application filed on 20 April 2023. The application was supported by a statement of claim in which APRA alleges as follows:
(a)Copyright subsists in the musical and literary works identified in the statement of claim (Works).[2] Particulars to that allegation identify each of the Works, and the author or authors of the Works. These are:
(i)Goodna (lyrics and music) written by Judson Jack Campbell;
(ii)From Hell (lyrics and music) written by Sean Michael Millar;
(iii)Future Lady (lyrics and music) written by Sean Michael Millar and James Dean Jackson; and
(iv)To the Moon and Back (lyrics and music) written by Daniel Jones and Darren Stanley Hayes.
[2] Statement of claim, [3]
(b)APRA is the owner, or is the representative of the owner, of the copyright that subsists in each of the Works to perform the Works in public (performing rights).[3] APRA became the owner or representative of the owner of the performing rights by an assignment made by each of the owners to APRA.
(c)Copyright subsists in the works that form part of “the APRA Repertoire” (APRA Repertoire Works);[4] and APRA is the owner, or representative of the owner or owners, of the performing rights in the APRA Repertoire Works.[5]
(d)The statement of claim does not define the “APRA Repertoire”; but the expression is defined in the schedule to the application as follows:
[3] Statement of claim, [4]
[4] Statement of claim, [5]
[5] Statement of claim, [4]
APRA REPERTOIRE
The Applicant:
(a)owns the copyright in respect of its application to the performance in public; and/or
(b)has the power to grant licences for the performance in public,
of practically all musical and literary works performed throughout Australia. The repertoire comprises the works written by members of the Applicant – who constitute more than 110,000 composers, authors and publishers of music – and members of affiliated societies in countries throughout the world.
The Applicant has carried on the business as an association of composers, authors and publishers of music for the purpose of licensing the public performance of musical and literary works since 1926.
The Applicant maintains a catalogue of its repertoire. The catalogue lists the works in which the Applicant owns the right of performance of the works in public. At present there are more than 10 million works listed in the catalogue. The items in the catalogue may be inspected by arrangement with the Applicant.
(e)The respondent is the proprietor of a business known as “King Lear’s Throne”, located at Unit 3, 693 Ann Street, Fortitude Valley, Queensland (Premises).[6]
[6] Statement of claim, [2]
(f)The respondent infringed APRA’s copyright in the Works and in the APRA Repertoire Works by, without the licence of APRA, performing the Works and APRA Repertoire Works in public; or by authorising the performance in public of the Works and the APRA Repertoire Works.[7] In particular:
[7] Statement of claim, [6]
(i)On 5 April 2019 Goodna and other APRA Repertoire Works were performed at the Premises by means of background music.
(ii)On 11 May 2019 From Hell, Future Lady, To the Moon and Back, and other APRA Repertoire Works were performed at the Premises by means of live performance.
(g)APRA has requested the respondent desist from infringing its copyright in the Works and in the APRA Repertoire Works.[8]
[8] Statement of claim, [6], particulars [iv]
(h)The respondent did the acts referred to in (f):[9]
[9] Statement of claim, [7]
(i)knowing he did not have APRA’s licence to do those acts;
(ii)knowing that to do those acts without the licence of the owner of the copyright in the Works constituted an infringement of the copyright in the Works;
(iii)in circumstances where, while avoiding the payment of licence fees to APRA, substantial benefit accrued to the respondent; and
(iv)wilfully persisting in doing those acts despite having the knowledge referred to in (i) and (ii).
(i)APRA relies on the following matters in support of the allegations referred to in (h):[10]
(i)the respondent was a party to a background music licence agreement and live performance licence agreement with APRA in relation to the Premises from 1 December 2017 to 31 December 2018;
(ii)by letter dated 19 December 2018 APRA terminated agreements referred to in (i) because the respondent failed to pay the licence fees payable under the agreements; and
(iii)letters passing between APRA’s lawyers and the respondent.
(j)The respondent’s acts are such as to render appropriate the awarding of damages under s 115(4) of the Copyright Act.
(k)As a result of the respondent’s acts, APRA has suffered loss and damage, and it will continue to suffer loss and damage unless the respondent is restrained from doing those acts.
[10] Statement of claim, [7], particulars
The respondent was served personally with the application and the statement of claim on 26 April 2023.[11]
[11] Affidavit S Borton 29.04.2023
The proceeding was listed for a first court date before me at 9:30 am on 9 May 2023. By email sent on 26 April 2023, my Associate provided the lawyers for APRA with dial-in details for joining the first court date by telephone, and requested that APRA’s lawyers provide a copy of the email to the respondent. APRA’s lawyers did so by email sent to the email address to and from which APRA and its lawyers had been communicating with the respondent (respondent’s email address).[12]
[12] Affidavit B B John 08.05.2023, annexure “BBJ-2”
The respondent did not appear at the first court date at 9:30 am on 9 May 2023. On that day I ordered that the respondent file and serve his defence by 24 May 2023, and that the proceeding stand over to 9:30 am on 8 June 2023 for directions or, if the respondent were not to comply with my order that he file a defence, for the hearing of an application for default judgment. I also ordered that if APRA intends to communicate with the respondent for the purpose of this proceeding, APRA could do so by sending an email to the respondent’s email address. Finally, I made the following notation to the orders:
If the respondent does not comply with order 1 the applicant shall be at liberty to apply at the directions hearing referred to in order 2 for default judgment or for any other relief the applicant may be advised to apply for.
On 9 May 2023 APRA’s lawyers sent to the respondent’s email address a sealed copy of the orders I made on 9 May 2023.[13]
[13] Affidavit B B John 05.06.2023, [6]; annexure “BBJ-5”
The respondent did not appear at the directions hearing at 9:30 am on 8 June 2023. In those circumstances, and as contemplated by the orders I made on 9 May 2023, APRA applied for default judgment, and I heard that application.
IS THE RESPONDENT “IN DEFAULT”?
The respondent “is in default” within the meaning of r 13.04(2) of the GFL Rules. The respondent has not given an address for service; he has not filed a defence; and he has failed to defend the proceeding with due diligence, or at all. It is therefore open to me to give judgment pursuant r 13.05(2)(c) of the GFL Rules for the relief to which APRA appears to be entitled on its statement of claim, and which I am satisfied I have power to grant.
DOES THE STATEMENT OF CLAIM PLEAD CAUSES OF ACTION?
The statement of claim filed in this proceeding is similar to the statement of claim I considered in the Earlier APRA Judgment. For the reasons I gave in concluding that the statement of claim in the Earlier APRA Judgment pleaded the essential elements of a cause of action for infringement of copyright,[14] I am satisfied that, on the face of the statement of claim APRA filed in this proceeding:
(a)copyright subsists in the Works and in the APRA Repertoire Works;
(b)given APRA alleges it is the owner of the performing rights in the Works, and in the APRA Repertoire Works, and the respondent has not put in issue these allegations, the presumption provided for by s 126 of the Copyright Act applies and, therefore, APRA is the owner of the performing rights in the Works and in the APRA Repertoire Works;
(c)on 5 April 2019 Goodna and other APRA Repertoire Works were performed in public at the Premises by means of background music, without the licence of APRA;
(d)on 11 May 2019 From Hell, Future Lady, To the Moon and Back, and other APRA Repertoire Works were performed in public at the Premises by means of live performance without the licence of APRA; and
(e)because of (a)-(d), the respondent has infringed APRA’s performing rights in the Works, or has otherwise authorised the acts referred to in (c) and (d).
[14] Australasian Performing Right Association Limited v Escape Bar & Night Club Pty Limited & Anor [2017] FCCA 2690, at [36]-[41]
Given these findings, the preconditions for giving judgment pursuant to r 13.05(2)(c) of the GFL Rules are satisfied. I then turn to the relief APRA seeks.
RELIEF
Declaration
I have set out in the Earlier APRA Judgment principles relevant to the granting of declaratory relief on applications for default judgment.[15] On the basis of those principles, I am satisfied there would be utility in granting a declaration that the respondent has infringed APRA’s copyright in the Works, provided the declaration as framed in APRA’s application is limited by particulars of the date, time, and place at which, and the means by which, the respondent infringed APRA’s copyright in the Works. That will identify more clearly the respondent’s acts that constituted the infringement of copyright; it will communicate to the public the kinds of acts that constitute infringement of copyright of musical and literary works and deter persons from engaging in such acts; and it will communicate the Court’s disapproval of the respondent’s acts. I propose, therefore, to grant a declaration that is limited by such particulars.
[15] Australasian Performing Right Association Limited v Escape Bar & Night Club Pty Limited & Anor [2017] FCCA 2690, at [46]
Compensatory damages
APRA has elected to claim damages rather than an account of profits. I have set out in the Earlier APRA Judgment principles relevant to assessing damages under s 115(2) of the Copyright Act for infringement of copyright.[16]
[16] Australasian Performing Right Association Limited v Escape Bar & Night Club Pty Limited & Anor [2017] FCCA 2690, at [51]-[54]
APRA claims as damages the licence fees APRA would have charged the respondent from 1 January 2019 to 18 April 2023, had the respondent taken the licence or licences APRA offered to persons who wished to use the performing rights APRA has in the APRA Repertoire Works. APRA relies on the affidavit of Ms Giuliano, an employee of APRA and a director of OneMusic Australia (OMA), to establish the licence APRA would have granted to the respondent, and the fees it would have charged the respondent, from 1 January 2019 to 18 April 2023. To that end, Ms Giuliano, whose evidence I accept, deposes to a number of matters, including the following:
(a)APRA is the collecting society in Australia in relation to the performing rights of composers and music publishers.
(b)Before 1 July 2019 APRA offered two types of licence agreements in relation to performing rights in the APRA Repertoire Works. One was a “Live Performances licence” (GLA licence), and the other was a “Background Music Hospitality licence” (BH licence). The fees APRA charged under these licences were based on information licensees provided to APRA. In the case of GLA licences, the information included the gross sums paid for admission or fees paid to the artist; and in the case of BH licences, the information included the devices used, and the size of the dining area (if there is a dining area).
(c)From about 1 July 2019 APRA has been licensing the use of its performing rights through OMA, which is a “joint initiative” between APRA, AMCOS (being the Australasian Mechanical Copyright Owners Society Ltd), and PPCA (being the Phonographic Performance Company of Australia Ltd). AMCOS is the exclusive licensee in Australia of certain reproduction rights of Australian and international publishers and songwriters; and PPCA is the collecting society representing, among other rights, the performing rights and limited reproduction rights in protected sound recordings and music videos owned or controlled by a vast number of record companies, record labels, and Australian recording artists.
(d)OMA offers different types of licence schemes, and therefore charges different licence fees, depending on criteria such as venue capacity, the number of persons admitted to a performance, or calculated on a specified rate according to the nature of the activity, and the type of use of music.
(e)One of the licence schemes OMA has been offering is the Hotels, Pubs, Taverns, Bars and Casinos licence (HPTBC licence). The activities licenced by the HPTBC licence includes the activities that were covered by the GLA and BH licences.
(f)The respondent held a GLA licence and BH licence for the public performance of music at the Premises, both of which commenced on 1 November 2017. By letter dated 19 December 2018 APRA terminated the GLA and BH licences it had granted to the respondent. At the time APRA terminated the respondent’s GLA and BH licences, the respondent had failed to pay license fees in the amount of $979.91. APRA recovered default judgment against the respondent for that amount.
On 31 May 2023 Mr John, the lawyer for APRA, accessed the Facebook and Instagram pages in relation to the Premises, and took screenshots of those pages.[17] Those screenshots show that music was being and continues to be performed on the Premises, and that the performance of music on the Premises is an important, and even essential element of the business the respondent was conducting on the Premises. In those circumstances, I find that:
(a)given the APRA Repertoire Works comprises works written by members of APRA, who constitute more than 110,000 composers, authors and publishers of music, and members of affiliated societies in countries throughout the world, the music the respondent performed or of which he authorised the performance, included not only the Works, but other works that form part of the APRA Repertoire Works; and
(b)the probabilities are that, if the respondent was offered the choice between ceasing the business he has been conducting on the Premises, involving as it did the live performance of music, or conducting the business on the Premises on the basis that he would pay a licence fee for the performance of music that forms part of the APRA Repertoire Works, the respondent would have elected to continue performing or authorising others to perform on the Premises the music, and paying the appropriate licence fee to APRA.
[17] Affidavit B B John 05.06.2023, [7]-[9]; annexures “BBJ-6”, “BBJ-7”, and “BBJ-8”
It is therefore appropriate that compensatory damages be assessed using the “license fee” approach Wilcox J discussed in Autodesk Australia Pty Ltd v Cheung.[18]
[18] Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472, at pages 476-477
Ms Giuliano has estimated the licence fees APRA would have charged the respondent on the assumptions that the respondent would have taken the GLA and BH licences up to 30 June 2019, and that he would have taken up the HPTBC licence from 1 July 2019 to 18 April 2023. On those assumptions, Ms Giuliano has estimated the licence fees the respondent would have paid under those licences from 1 January 2019 to 18 April 2023 to be $2,306.47. I am satisfied that this amount fairly reflects the loss APRA has suffered because of the respondent’s infringement of APRA’s performing rights in the APRA Repertoire Works, including the Works.
Injunction
The granting of an injunction under s 115(2) of the Copyright Act is discretionary. Matters that are relevant to the exercise of that discretion include the period over which the infringing conduct has taken place, the flagrancy of the infringement, and other matters that prevent the Court from being satisfied there is no substantial risk the respondent will engage in infringing conduct.[19]
[19] See, for example, Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2016] FCAFC 22, at [178]-[181]
The evidence shows, and I find, that music continues to be performed on the Premises; and the evidence to which I will shortly refer shows that the respondent has been flagrant in his infringement of APRA’s performing rights in the music that has been, and is continuing to be performed at the Premises. Unless restrained the respondent will continue to perform or authorise others to perform on the Premises music in infringement of APRA’s performing rights in that music. I therefore propose to grant an injunction in the form APRA claims in its application.
Additional damages under s 115(4) of the Copyright Act
Subsection 115(4) of the Copyright Act provides as follows:
Where, in an action under this section:
(a) an infringement of copyright is established; and
(b) the court is satisfied that it is proper to do so, having regard to:
(i)the flagrancy of the infringement; and
(ia)the need to deter similar infringements of copyright; and
(ib)the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiff's copyright; and
(ii)whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analog form into a digital or other electronic machine-readable form; and
(iii)any benefit shown to have accrued to the defendant by reason of the infringement; and
(iv)all other relevant matters;
the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.
The principles concerning the assessment of additional damages under s 115(4) of the Copyright Act are conveniently set out by Yates J in Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (No 3).[20]
[20] Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (No 3) [2014] FCA 909, at [37]-[53]
Allegations made in the statement of claim (which in the absence of a defence are taken to be admitted), and the evidence reveal the following.
(a)The respondent is the proprietor of a business known as “King Lear’s Throne” which he conducts at the Premises.
(b)The respondent is, and since 22 September 2017 has been, the holder of a licence to operate a bar at the Premises from 10:00 am to 2:00 am Monday to Sunday.[21]
[21] Affidavit B B John 05.06.2023, annexure “BBJ-3”
(c)The respondent held a GLA licence and a BH licence from APRA effective from 1 November 2017.[22]
[22] Affidavit C Giuliano 06.06.2023, [24], [25]
(d)By letter dated 19 December 2018 APRA terminated the GLA and BH licences because the respondent had failed to pay the amounts payable under those licences. That led to APRA commencing proceedings in the Local Court and recovering default judgment in the amount of $979.91. The respondent has not paid the judgment debt.[23]
[23] Affidavit C Giuliano 06.06.2023, [26]-[29]
(e)By letter dated 4 September 2019 APRA’s lawyers informed the respondent that evidence had been obtained that music in the APRA Repertoire Works was performed on the Premises on 13 March, 7 April, and 11 May 2019, and demanded that the respondent sign and return licence agreements.[24]
[24] Affidavit B B John 05.06.2023, annexure “BBJ-4”
(f)In a letter dated 27 July 2021 APRA’s lawyers referred the respondent to the letter dated 4 September 2019 APRA’s lawyers had sent to the respondent, and noted, among other things, that music in the APRA Repertoire Works continued to be performed at the Premises, but the respondent has not entered into any licence agreements with APRA. APRA’s lawyers demanded the respondent sign and return the form of licence agreements that were attached to the letter, and that the respondent pay the judgment debt.[25]
[25] Affidavit B B John 05.06.2023, annexure “BBJ-4”
(g)On 27 July 2021 the respondent sent an email to Mr John, APRA’s lawyer, in which he stated that “all bands that we pay inside our venue will be paid”.[26] The respondent continued:
[26] Affidavit B B John 05.06.2023, annexure “BBJ-4”
We can supply track listing’s for you to pay these bands. If you can not and will not, I will have to take further action to the ACCC in regards to services not be provided in accordance with Australian law.
(h)Mr John responded by email sent to the respondent on 4 August 2021. Mr John noted the following:[27]
[27] Affidavit B B John 05.06.2023, annexure “BBJ-4”
APRA distributes royalties to the owners of the copyright in songs [in] its repertoire, being the songwriters and publishers of those songs.
Accordingly, to the extent that APRA repertoire is being performed at your premises, members of bands that perform originals who are also songwriters are entitled to receive APRA royalties. Where bands perform cover versions, it is the songwriters and publishers of the originals that are entitled to APRA royalties.
Mr John concluded his email by stating “[w]e look forward to your response to the demands in our previous letter”.[28]
[28] Affidavit B B John 05.06.2023, annexure “BBJ-4”
(i)On 4 August 2021 the respondent sent an email to Mr John stating: “Ok we won’t play any bands anymore”.[29]
[29] Affidavit B B John 05.06.2023, annexure “BBJ-4”
(j)On 6 September 2021 Mr John sent an email to the respondent in which he said, among other things, that “even if it is the case that live music will cease at King Lear’s Throne”, the respondent has not provided a satisfactory response to the earlier demands, first, because the respondent has not paid the default judgment, and second, Mr John had been instructed that music in the APRA Repertoire Works continues to be performed at the Premises by way of background music.[30]
[30] Affidavit B B John 05.06.2023, annexure “BBJ-4”
(k)On 8 September 2021 the respondent sent an email to Mr John in which he stated “finally they have acknowledged their wrong doing in refusal [sic] to take track listings from venues”.[31]The respondent further stated as follows (errors in original):
[31] Affidavit B B John 05.06.2023, annexure “BBJ-4”
They don’t take track listings which is why they are collecting the fees, bands should get paid but they are not. Can you convey on their end how they can rectify the situation, I will pay once they take track listings from venues and they pay all the bands, any bands not paid I will pay only a percentage of the artists that are paid. I want the best for all artists, maybe they should come to the party during these times.
(l)Mr John responded by sending an email to the respondent at 11:44 am on 21 September 2021. Mr John stated that APRA already receives track listings of songs performed live at venues, and APRA distributes licence fees “in accordance with its distribution rules and practices”. Mr John concluded his email as follows:
Given our client receives track listings of live music performed at venues and distributes royalties for live music accordingly, there are seemingly no barriers to you licensing with our client. We look forward to receiving your completed OneMusic Australia licence in respect of background and live use of our client’s music at your venue and payment of the previously advised judgment debt in the amount of $979.92.
We are instructed our client is willing to extend the deadline for receipt of that licence and payment, to close of business on Friday, 24 September 2021.
(m)The respondent responded to Mr John’s email by email sent at 1:43 pm on 21 September 2021. The respondent stated he would be happy to pay any fee for songs played at “my venue”, and that he will “save them the hassle and pay them the payment directly so there is no need for that and I can set up a contract regarding fee payments in the future with all bands”. The respondent further said:
I will happily pay a percentage of . . . that fee in regards to the amount of bands that play here, so if 1 out of 10 bands submit anything to onemusic (APRA) I will pay 10% so $97.99 will be my fee, unless they pay all the bands which is their job not mine.
Looking forward to a solution so that onemusic can be better than ripping off small bands.
(n)On 21 March 2023 Mr John sent an email to the respondent stating that APRA was “understandably concerned about continued unlicensed performances of its repertoire at your premises”. Mr John also stated that unless within 14 days from 21 March 2023 the respondent signed and returned an “acceptably completed licence agreement” APRA proposed to commence proceedings in this Court for copyright infringement.
The following observations may be made about the facts revealed by this evidence:
(a)The respondent had entered into the GLA and BH licences, effective from 1 November 2017. That is a basis for inferring that at the time he entered into the licence agreements the respondent recognised APRA’s rights in relation to the performance of live and background music at the Premises.
(b)The respondent’s emails manifest a denial of APRA’s performing rights in music that has been performed live at the Premises. The respondent has maintained that denial even though APRA, through Mr John, explained the basis on which APRA claims that music can be performed in the Premises only with APRA’s licence. There is nothing to suggest the respondent has obtained any legal advice to support his denial of APRA’s rights.
(c)In his email of 4 August 2021 the respondent said “Ok we won’t play any bands anymore”, thus implying the respondent accepts APRA’s performing rights in music performed live at the Premises. Live music, however, continues to be performed at the Premises.
The evidence also shows that live and background music has been performed at the Premises since 2017. As APRA submits in its written submissions,[32] Facebook and Instagram advertising in relation to the Premises emphasises the music to be performed; and Facebook and Instagram posts show images of live music performances.
[32] Applicant’s Submissions, [34]
The respondent’s infringement of APRA’s copyright has been, and continues to be flagrant; and it is open to infer, and I find, that the live performance of music, was, and continues to be, an important part of the business the respondent conducted at the Premises.
APRA has referred me to a number of cases as illustrations of the amount of additional damages that have been awarded for the infringement of copyright. Although useful, it is not appropriate, and APRA has not submitted it is appropriate, that I undertake any detailed comparison between circumstances considered relevant in those cases, and the circumstances of the application before me. As APRA submitted, the amount of additional damages is uniquely a matter for the Court, and the Court may award such additional damages it considers appropriate.
The flagrancy and sustained infringement of APRA’s performing rights in the APRA Repertoire Works, and the need to deter persons who conduct businesses of the sort the respondent conducts at the Premises from infringing the performing rights in music, are matters that weigh in favour of awarding substantial additional damages. I consider it is appropriate that the respondent be ordered to pay additional damages in the amount of $40,000.
Interest and costs
APRA claims interest pursuant to s 211 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). APRA has calculated interest by applying the rate mentioned in the Federal Court Practice Note GPN-INT, being 4% above the cash rate for each six month period. APRA has calculated interest on this basis on $2,306.47 from 1 January 2019 to 31 December 2022. The amount of interest is $187.86.
APRA seeks an order for costs in the sum of $10,007.70. That sum has been calculated by reference to the amounts set out in Schedule 2 to the GFL Rules. I am satisfied it is appropriate to make an order for costs against the respondent, and that those costs be set in the amount of $10,007.70.
DISPOSITION
I will:
(a)make a declaration in the form I have discussed earlier in these reasons;
(b)grant an injunction in terms of the injunction APRA seeks;
(c)order that there be judgment for APRA in the amount of $2,494.33, being the sum of the compensatory damages of $2,306.47 I have assessed, and interest of $187.86;
(d)order pursuant to s 115(4) of the Copyright Act that there be judgment for APRA in the amount of $40,000; and
(e)order that the respondent pay APRA’s costs set in the amount of $10,007.70.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 16 June 2023
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