Phonographic Performance Company of Australia Limited v Commonwealth of Australia

The High Court of Australia considered a special case brought by the Phonographic Performance Company of Australia Limited (PPCA) and other plaintiffs against the Commonwealth of Australia. The dispute concerned the validity of sections 109 and 152 of the *Copyright Act 1968* (Cth), which imposed a "cap" on compulsory licence fees payable for the broadcast of sound recordings. PPCA, which licenses the broadcast of sound recordings, argued that these provisions were beyond the legislative competence of the Commonwealth Parliament due to section 51(xxxi) of the Constitution, which requires acquisitions of property to be on just terms.

The Court was required to determine three questions. First, whether certain provisions of sections 109 and 152 of the *Copyright Act 1968* were beyond the legislative competence of Parliament by reason of section 51(xxxi) of the Constitution. This question encompassed whether pre-1 May 1969 copyright in sound recordings constituted property capable of attracting the guarantee in section 51(xxxi), whether the impugned sections effected an acquisition of that property, and if so, whether just terms were provided. Second, if the provisions were beyond legislative competence, whether they should be read down or severed. Third, what order should be made regarding the costs of the special case.

The Court reasoned that the provisions of section 152 of the *Copyright Act 1968*, which set a statutory cap on compulsory licence fees, did not constitute an acquisition of property for the purposes of section 51(xxxi) of the Constitution. The Court found that the statutory scheme did not involve the Commonwealth acquiring property from the copyright holders. Instead, it regulated the terms upon which existing rights could be exercised under a compulsory licensing regime. Therefore, the provisions were not invalid by reason of section 51(xxxi).

Consequently, the High Court answered the first question in the negative, finding that the provisions in section 152 of the *Copyright Act 1968* were not invalid. As a result, the second question, concerning whether the provisions should be read down or severed, did not arise. The Court ordered that the plaintiffs pay the defendants' costs of the special case.