Phonographic Performance Company of Australia Limited & Ors v Commonwealth of Australia & Anor

The Phonographic Performance Company of Australia Limited (PPCA) and other applicants brought proceedings against the Commonwealth of Australia and the Australian Broadcasting Corporation (ABC) in the High Court of Australia. The dispute concerned the interpretation and application of section 135 of the *Copyright Act 1968* (Cth), which provides a statutory licence for the broadcasting of sound recordings. The applicants, who were copyright owners of sound recordings, alleged that the ABC had infringed their copyright by broadcasting certain sound recordings without complying with the conditions of the statutory licence.

The central legal issue before the High Court was whether the ABC's broadcasting of sound recordings constituted an infringement of copyright, notwithstanding the existence of the statutory licence under section 135 of the *Copyright Act 1968*. Specifically, the court had to determine whether the ABC had fulfilled the requirements of that section, which included the obligation to pay equitable remuneration to the copyright owners. The applicants contended that the ABC had failed to pay such remuneration, thereby vitiating the licence and rendering its broadcasts infringing.

Gummow J, in his judgment, considered the nature of the statutory licence and the obligation to pay equitable remuneration. His Honour referred to previous High Court decisions that had established that a statutory licence operates as a defence to an action for infringement, but only if its conditions are met. The court examined the evidence regarding the payments made by the ABC and the basis upon which those payments were calculated. His Honour concluded that the ABC had not established that it had paid equitable remuneration as required by section 135, and therefore, its broadcasts of the sound recordings in question were not protected by the statutory licence and constituted an infringement of copyright.