Phonographic Performance Company of Australia Ltd v Federation of Australian Commercial Television Stations

The High Court of Australia heard an appeal concerning copyright in sound recordings embodied in the soundtracks of cinematograph films. The parties were the Phonographic Performance Company of Australia Limited and others (appellants) and the Federation of Australian Commercial Television Stations (respondent). The dispute centred on whether the broadcast of a film constituted a broadcast of the underlying sound recording for copyright purposes.

The legal issues before the High Court were whether the act of broadcasting a cinematograph film, which included a sound recording on its soundtrack, constituted the infringement of copyright in that sound recording under section 85(1)(c) of the Copyright Act 1968 (Cth), or alternatively, whether it constituted the broadcast of a published sound recording for the purposes of section 152(2) of the Act.

The High Court, in allowing the appeal, determined that the broadcast of a cinematograph film did constitute the doing of the act set out in section 85(1)(c) with respect to a sound recording. The Court reasoned that the Copyright Act expressly provides separate rights for owners of copyright in works and sound recordings, and that the language of the Act, when construed in light of the Rome Convention to which Australia is a party, supported this interpretation. The Court found that the rights of copyright owners in sound recordings were not intended to be enlarged beyond what the Convention provided, and that the legislative history and the absence of explicit mention of such an enlargement by the Attorney-General indicated that the existing provisions were considered sufficient. The Court noted that the consent of the sound recording copyright owner is required for its incorporation into a film, and at that stage, remuneration for future broadcasts can be negotiated. The Court also found that sections 85, 109, and 152 of the Act "travel together," meaning the section 152 procedure for determining licence fees is only invoked when a section 85(c) right has been infringed.

The High Court allowed the appeal, set aside the orders of the Full Court of the Federal Court, and ordered that the questions referred to that Court be answered in the affirmative regarding section 85(1)(c). The respondent was ordered to pay the appellants' costs.