Phonographic Performance Company of Australia Limited under s 154(1) of the Copyright Act 1968 (Cth) (No 2)

Phonographic Performance Company of Australia Limited (PPCA), a collecting society for copyright owners of sound recordings, applied to the Competition and Consumer Tribunal for approval of a proposed licensing scheme under section 154(1) of the Copyright Act 1968 (Cth). The proposed scheme sought to regulate the use of sound recordings by subscription television broadcasters, including both broadcast and streaming services, particularly for on-demand offerings. The Tribunal was tasked with determining whether it could approve a licensing scheme where the collecting society's members had not licensed the use in question.

The primary legal issue before the Tribunal was whether it could approve a licensing scheme under section 154(1) of the Copyright Act 1968 (Cth) when the collecting society's members had not explicitly licensed the use for subscription television broadcasters, including streaming services. The Tribunal considered whether the scheme's non-price terms were necessary and not anti-competitive, and whether they would benefit the public by facilitating access to sound recordings.

The Tribunal concluded that it could not approve the proposed licensing scheme. The Tribunal found that the scheme's non-price terms, which included the use of sound recordings by subscription television broadcasters, particularly for streaming and on-demand offerings, were not supported by the collecting society's members. As such, the Tribunal determined that it could not approve a scheme that permitted the use of sound recordings in circumstances where the collecting society's members had not licensed it for that use. Consequently, the Tribunal dismissed PPCA's application for approval of the proposed licensing scheme.

No final orders were made in this instance as the Tribunal dismissed the application outright. However, the Tribunal's decision emphasised the importance of ensuring that licensing schemes approved under section 154(1) of the Copyright Act 1968 (Cth) have the support of the collecting society's members and do not permit the use of sound recordings in circumstances where it has not been licensed.