Phonographic Performance Company of Australia Limited under s 154(1) of the Copyright Act 1968 (Cth)

The case involved Phonographic Performance Company of Australia Limited (PPCA) and Foxtel, with the dispute centering on the licensing scheme for the use of sound recordings by subscription television broadcasters. The matter was referred to the Tribunal under section 154(1) of the Copyright Act 1968 (Cth) for its consideration and approval of the proposed licensing scheme. The central issue before the Tribunal was the calculation of licensing fees, specifically whether they should be based on a per subscriber per month (PSPM) basis or a percentage of Foxtel's subscription television business revenues, excluding pay-per-view sporting events. Another key issue was whether the fees should be increased and, if so, by how much and over what period.

The Tribunal examined the evidence presented by both parties and concluded that the licensing fees should indeed be based on a percentage of Foxtel's subscription television business revenues. It decided that the proposed percentage should be increased gradually over five years to a rate 150% higher than the previous rate. The Tribunal outlined a phased approach to implementing the new licensing formula, starting with the gross quantum of fees paid in the final year of the former agreement expressed as a percentage of Foxtel's relevant revenues for that year. This percentage would then increase by equal increments over five years, culminating in a 150% increase by the end of this period and maintaining this rate thereafter. This approach ensures that the fees payable to PPCA are aligned with Foxtel's revenue movements and that the overall percentage rate will be 2.5 times higher than the previous rate.

The Tribunal's decision reflects a careful consideration of the evidence and a balanced approach to ensuring fair remuneration for PPCA while also taking into account the commercial realities faced by Foxtel. The phased implementation of the new fee structure allows for a smoother transition and helps mitigate potential disruptions to both parties. The Tribunal's approval of the proposed licensing scheme, with the specified modifications, aims to achieve a fair and equitable outcome for all stakeholders involved.