Australian Broadcasting Commission v Australasian Performing Right Association Ltd

The Australian Broadcasting Commission (ABC) and the Australasian Performing Right Association Ltd (APRA) were the parties in this dispute before the High Court of Australia. The core of the disagreement concerned the licensing of musical works for broadcast by the ABC. APRA, as the collecting society for copyright owners, sought to impose licence fees on the ABC for the performance of musical works in its broadcasts, while the ABC contended that its broadcasts did not constitute public performances of those works in a manner that attracted copyright liability under the relevant legislation.

The High Court was required to determine whether the broadcasting of musical works by the ABC constituted a performance of those works in public, and if so, whether the ABC was liable to APRA for royalties. Specifically, the court had to consider the interpretation of "performance in public" within the context of broadcasting and the relationship between the initial broadcast and subsequent reception by listeners.

The court's reasoning centred on the distinction between the act of broadcasting and the act of reception. It was held that the broadcast itself, when transmitted through the airwaves, did not constitute a performance in public. Rather, a performance in public occurred at the point of reception by the listener. Therefore, the ABC, by merely broadcasting the music, was not performing the work in public. The legal principle applied was that copyright protection for public performance attaches to the act of making the work audible to the public, not to the transmission of the sound.

Consequently, the High Court found in favour of the Australian Broadcasting Commission, holding that its broadcasts did not infringe APRA's copyright in the musical works by way of public performance.