Phonographic Performance Company of Australia Limited (ACN 000680 704) under section 154(1) of the Copyright Act 1968

The Phonographic Performance Company of Australia Limited (PPCA) sought approval for a proposed licensing scheme under section 154(1) of the Copyright Act 1968 (Cth), which would allow the use of sound recordings in fitness classes. The Australian Competition and Consumer Commission (ACCC) questioned the validity of the survey evidence used by PPCA to determine the licence fees, arguing that it was flawed and did not accurately reflect the value of the sound recordings in fitness classes. The Tribunal had to decide whether the proposed scheme was fair and reasonable, taking into consideration the methodology used to calculate the licence fees, the willingness of fitness centres to pay for recorded music, and the impact of competition issues on the proposed scheme.

The Tribunal found that the survey evidence presented by PPCA was flawed and did not accurately reflect the value of the sound recordings in fitness classes. The Tribunal noted that the survey did not consider the willingness of fitness centres to pay for recorded music, and that the methodology used to calculate the licence fees was not based on a proper understanding of the value of the sound recordings in fitness classes. The Tribunal also considered the impact of competition issues on the proposed scheme, and found that the proposed scheme would not result in a significant increase in the cost of fitness classes for consumers.

The Tribunal approved the proposed scheme with modifications, including a reduction in the licence fees and a requirement for PPCA to conduct a new survey to accurately determine the value of the sound recordings in fitness classes. The Tribunal also noted that the ACCC should be allowed to make submissions in Tribunal proceedings where it had an interest in the outcome of the case.

The Tribunal ordered PPCA to bring in short minutes to give effect to its conclusions, and noted that settlement and entry of orders would be dealt with in Order 36 of the Federal Court Rules.