Copyright Owners Reproduction Society Ltd v EMI (Australia) Pty Ltd

The Copyright Owners Reproduction Society Ltd. (the plaintiff) appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned the correct rate of royalties payable for the mechanical reproduction of musical works. The plaintiff sought a declaration that the rate should be six and one-quarter per cent of the retail selling price, as established by a United Kingdom Act of Parliament in 1928. The defendant contended that the rate remained at the original five per cent stipulated in the Copyright Act 1911 (Imperial).

The central legal issues before the High Court were: (1) whether the Copyright Act 1956 (Imperial), which repealed the 1911 Act in the United Kingdom, had the effect of repealing the 1911 Act in Australia; (2) whether a United Kingdom Act of 1928, which confirmed an order increasing the royalty rate, had legislative operation in Australia; and (3) consequently, what was the applicable royalty rate in Australia.

A majority of the High Court (Dixon C.J., McTiernan and Taylor JJ.) held that the Copyright Act 1956 (Imperial) did not extend to Australia due to the operation of the Statute of Westminster 1931. They further found that the Copyright Order Confirmation (Mechanical Instruments: Royalties) Act 1928 (Imperial) did not have legislative operation in Australia, despite being passed before the Statute of Westminster. The reasoning was that the 1928 Act, while confirming an order made by the Board of Trade following a public inquiry, was not intended to apply to self-governing dominions like Australia. The inquiry and subsequent parliamentary confirmation were confined to the circumstances and industry within the United Kingdom. Therefore, the rate applicable in Australia remained the five per cent originally fixed by the Copyright Act 1911. Menzies J. dissented, finding that the 1928 Act did have operation in Australia.

The High Court dismissed the appeal, affirming the decision of the Supreme Court of New South Wales. The applicable royalty rate for mechanical reproductions in Australia was determined to be five per cent of the retail selling price.