Reference by APRA AMCOS (Program for the Conduct of the Reference) - [2022] ACopyT 1

COPYRIGHT TRIBUNAL OF AUSTRALIA
Reference by APRA AMCOS (Program for the Conduct of the Reference) [2022] ACopyT 1

File number: CT 1 of 2021

Judgment of: PERRAM J (DEPUTY PRESIDENT)

Date of Determination: 16 February 2022

Number of paragraphs: 16

Date of hearing: 16 February 2022

Counsel for the Applicant Mr M Hall SC with Ms R De Stoop and Ms M Evetts

Solicitor for the Applicant Banki Haddock Fiora

Counsel for Netflix, Inc. Mr P Brereton SC with Ms L Thomas

Solicitor for Netflix, Inc. Simpsons Solicitors

Counsel for Stan Entertainment Pty Ltd Mr J Hennessy SC with Ms A Campbell

Solicitor for Stan Entertainment Pty Ltd MinterEllison

Counsel for the Walt Disney Company (Australia) Pty Ltd Ms J M Beaumont

Solicitor for the Walt Disney Company (Australia) Pty Ltd Ashurst

Solicitor for Network Ten All Access Pty Ltd Baker McKenzie

Solicitor for Apple Pty Limited Clayton Utz

COMMONWEALTH OF AUSTRALIA
COPYRIGHT ACT 1968

IN THE COPYRIGHT TRIBUNAL CT 1 of 2021

REFERENCE BY:
AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED ABN 42 000 016 099

AUSTRALASIAN MECHANICAL COPYRIGHT OWNERS’ SOCIETY LIMITED ABN 78 001 678 851

Applicants

TRIBUNAL:

PERRRAM J (DEPUTY PRESIDENT)

DATE OF ORDER:

16 FEBRUARY 2022

THE TRIBUNAL ORDERS THAT:
1.The parties confer and provide a short minute of order giving effect to these reasons within 7 days.

REASONS FOR DETERMINATION
PERRAM J (DEPUTY PRESIDENT):

The Applicants on the present reference are the Australasian Performing Right Association Limited and the Australasian Mechanical Copyright Owners’ Society Limited (‘APRA/AMCOS’). A number of matters were canvassed at the case management hearing on 16 February 2022. I would resolve the matters in dispute as follows:
SEPARATION OF THE STAN SCHEME
I do not think that it is clear that the Stan scheme can be dealt with separately at this stage. If the Netflix or APRA/AMCOS schemes are adopted they will, in terms, apply to Stan. Accordingly, Stan will need to be heard on why their schemes ought not to apply to it. Any separation of the Stan scheme would not therefore achieve the total economy that Stan suggests as the issues its scheme raises must be determined when considering what the scope of the APRA/AMCOS schemes should be.
Accordingly, I do not think that it would be useful at this stage to seek to separate out the Stan application. On the other hand, if the two sets of schemes are dealt with together this will involve the parties in making two sets of hypothetical submissions. Stan will need to have a case on the Netflix and APRA/AMCOS schemes in the event that its view of coverage is not accepted. Correspondingly, at least APRA/AMCOS will need to have a position on the Stan scheme in the event that its view of coverage is accepted. This is, it may be accepted, burdensome but the separation of the Stan scheme from the current reference is filled with a degree of procedural complexity which I think it too risky to undertake.
It may be that as the matter progresses it becomes clear that some degree of separation is possible. For example, the topic of coverage may be able to be debated in isolation. If the question of coverage be concluded in favour of Stan then it may be possible to conduct a subsequent hearing on what the terms of the Stan scheme should be. I am to a degree sceptical that this will turn out to be workable but would not wholly exclude the possibility at this stage. I accept that such a course would avert the necessity for the preparation of hypothetical evidence depending on the outcome of the coverage question. I do not think, however, that the picture is presently clear enough to take the procedural risks this potentially entails.
SHOULD THE STAN AND NETFLIX SCHEMES BE REQUIRED TO MOVE IN CHIEF THROUGH PHASE 4?
The Respondents have submitted that all of the issues which arise from the Stan and Netflix schemes are presently in the Statement of Issues. On that understanding, I do not see that there is any utility in making the Stan and Netflix schemes go through the phase 4 process. In effect, those schemes contain disputes with the APRA/AMCOS scheme. In any event, I accept that there is a considerable risk of over complicating the proceeding if three schemes are separately advanced in chief, particularly where all the points in the second and third are already present in the Statement of Issues arising from the first. It will also carry the risk, as Apple submitted, of the schemes passing like ships in the night.
ADJUSTMENTS TO PHASES 6, 7 AND THE ADDITION OF PHASE 7A
That being so, it is necessary to adjust phases 6-7 to distinguish the Respondents’ submissions and evidence responsive to APRA/AMCOS’ submissions from their submissions and evidence which advance in chief the Stan or Netflix schemes. It is also necessary to put in place a right of APRA/AMCOS to respond to the Respondents’ material in chief and for the Respondents to have a corresponding entitlement to reply. Provision is already made for APRA/AMCOS to reply on its case in chief. Netflix propounded some changes to the Program for the Conduct of the Reference which amended phases 6 and 7 and propounded a new phase 7A. I agree with those changes and the program will be amended accordingly.
APRA/AMCOS AND PHASE 4 - EXPERTS
APRA/AMCOS seeks to be relieved of the obligation to deal with its expert evidence as part of phase 4. Instead, the Tribunal should require the parties to agree what kinds of experts will be called so that APRA/AMCOS can deal with this in chief. I do not accept this submission. All parties can call who they wish. If one of the Respondents calls an expert of a kind which APRA/AMCOS did not rely upon in phase 4, APRA/AMCOS may call such an expert in reply. I am keen to limit the number of rounds of evidence which tend to proliferate in Tribunal proceedings in a way which is not helpful.
APRA/AMCOS AND PHASE 4 – LAY WITNESSES
I do not accept APRA-AMCOS’ contention that its expert evidence should be postponed until the lay evidence of the Respondents has been put on. This will create the risk, I accept, that the expert opinions in chief of APRA/AMCOS and the Respondents may be based on different evidentiary foundations. To the extent that this is a problem it is adequately addressed by the ability to reply and the mechanisms in phases 8-11 which will provide increased structure over the evidentiary phase.
DOCUMENT PRODUCTION
I accept APRA/AMCOS’ submission that it should have an entitlement to seek document production prior to the preparation of its expert evidence. There will therefore be inserted into the Program a new phase 3A which provides for document production at the instance of APRA and AMCOS. I will leave phase 5 in place for the benefit of the Respondents although I will permit APRA/AMCOS to take advantage of phase 5 as well.
STATEMENT OF ISSUES
I note the Respondents’ submission that the Statement of Issues document is a working document which will be amended over time as positions are clarified and/or resolved. On that basis, I will not require definitive positions to be taken at this stage and encourage the parties to continue to progress the Statement of Issues.
EARLY DETERMINATION OF WHETHER THE STAN AND NETFLIX ALTERNATE SCHEMES ARE SCHEMES?
Since all the issues in these two schemes are captured in the Statement of Issues, I do not think that this would be useful at this stage. It seems likely that as the Program progresses these schemes will undergo modification, especially in relation to the issue of rates. In any event, the scheme which is ultimately likely to be propounded will not be the scheme put forward by any party. The more likely outcome is that in its final determination the Tribunal will invite APRA/AMCOS to propound a further scheme giving effect to its conclusions. As such the question of whether these two schemes are actually schemes is not of such importance to the preparation of the hearing that it should be dealt with at this stage. In my view, there is a high likelihood of this issue receding.
NETFLIX PROPOSED ORDER 3
The parties agree that this order should be made.
MEDIATION
I note that the parties have commenced the process of resolving so far as possible the issues in the Statement of Issues which are thought to be able to be progressed under an ADR regime.
AGREED STATEMENT ON THE NATURE OF APRA/AMCOS AND SVOD
Although at the case management hearing I raised as a possibility the preparation of a working document on these issues, upon reflection I do not think that this will be necessary in light of phase 8.
PROGRAM FOR THE CONDUCT OF THE REFERENCE
The amended Program for the Conduct of the Reference is attached to these reasons in Annexure A.
ORDERS
The parties should bring in short minutes of order to give effect to so much of phases 1, 2, 3, 3A and 4 as remains to be done. It appears to me that phase 3A may take some time. Orders along the lines proposed by APRA/AMCOS for document production should be included although they should be adjusted to take account of the fact that only APRA/AMCOS will be seeking documents at phase 3A. It appears to me that phase 4 should take around 3-4 months and I will indicate that this is what I propose the respondents should have in due course for phase 6. The timing for the reply elements in phases 7 and 7A need not be presently addressed. The short minutes of order should therefore provide for phases 3A and 4 together with Netflix’s proposed Order 3. If there are any further debates which need to be resolved (i.e. as to the timing of phase 3A) this can be resolved in chambers or with a further case management hearing if necessary. The matter should come back for directions after phase 4 for review on a date to be determined with my Associates.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for the Determination of the Tribunal constituted by the Honourable Justice Perram (Deputy President).
Associate:
Dated:       16 February 2022
ANNEXURE A
CT1/21 – Reference by APRA AMCOS re SVOD licence scheme
Tribunal’s suggested program for conduct of reference Updated February 2022

Phase Explanation

Phase One
General issue identification. Parties’ initial positions on issues (as per draft table of key issues). Commencement of ADR process to resolve such issues as can be resolved using a registrar of the Tribunal as a facilitator. This process to continue for as long as necessary in parallel with the other phases. The Tribunal is open to any method the parties favour for facilitating this process (such as an expert panel)

if the parties would prefer that.

Phase Two
Articulation of any further schemes in addition to the APRA-AMCOS scheme and

the Stan scheme (e.g. the Netflix scheme).

Phase Three
Identification of issues for determination by the Tribunal (this may be reduced

progressively as Phase One continues) – production of Initial Issues List

Phase 3A Document production at the instance of APRA and AMCOS

Phase Four
Preparation of APRA-AMCOS submissions and evidence

Format for submissions:

·     Findings of non-expert facts which will be sought

·     Findings on expert matters which will be sought

·     Submissions on each issue in the Initial Issues List. Effort should be made to ensure that the submissions match the Initial Issues List so that the parties’ are talking about the same things.

·     Brief comments on each clause of each scheme cross-referenced to submissions

Evidence to consist of:

·     Document bundle (documents do not need to be attached to affidavits)

·     Lay statements

·     Expert statements

Phase Five Document production – issue of summonses by all parties if necessary

Phase Six
Preparation of respondents’ submissions and evidence in same format as APRA-

AMCOS submissions and evidence (see Phase Four), being submissions and evidence that (1) – responds to APRA-AMCOS’s submissions and evidence; and (2) advances evidence and submissions in respect of any further scheme or licence advanced by any other party (see Phase Two).

Phase Seven Preparation of APRA-AMCOS submissions and evidence in same format, being submissions and evidence that: (1) is in reply in so far as the APRA-AMCOS scheme is concerned (should include nil entries if no reply necessary); and (2) responds to evidence and submissions in respect of any further schemes advanced by any other party (see Phase Six).

Phase 7A Preparation of respondents’ submissions and evidence in reply in respect of any further scheme or licence advanced by any other party in same format (should include nil entries if no reply necessary).

Phase Eight
Preparation of:

·     Narrative statement of facts which are agreed

·     List of facts which are not agreed with each such fact accompanied by the submissions of each relevant party on that fact (reproduced from the submissions)

·     Statement of agreed matters of expert evidence

·     Statement of disagreed matters of expert evidence with the relevant parties’ respective submissions on the disagreements set out.

Phase Nine Parties to lodge any objections to evidence.

Phase Ten Tribunal to rule on objections to evidence.

Phase Eleven
Preparation of hearing book. Hearing book to consist of:

·     Part I: Documents

·     Part II: Statements marked up with rulings

·     Part III: Formal documents such as applications

Hearing book to be in electronic format (detailed instructions will be provided by chambers).

Phase Twelve Conference to determine scope of cross-examination of witnesses and scheduling of witnesses. It is not necessary for these to be sequential or to be done in a block.

Phase Thirteen Cross-examination of witnesses. Transcript to be added to hearing book as Part IV.

Phase Fourteen Parties to submit revised narrative statements from Phase Eight.

Phase Fifteen Parties to prepare Final Statement of Issues and Final Submissions in same format as Phase Four (based on Final Statement of Issues).

Phase Sixteen Parties to submit Submissions Book containing Final Submissions and Final
Statement of Issues to the Tribunal. References in the Submissions Book must be hyperlinked to the electronic hearing book.

Phase

Seventeen
Tribunal to produce draft determination.

Phase Eighteen Oral hearing.

Phase

Nineteen
Tribunal to make final determination.

SCHEULE OF PARTIES
Respondents

NETFLIX, INC.

STAN ENTERTAINMENT PTY LTD (ABN 94 168 856 924)

THE WALT DISNEY COMPANY (AUSTRALIA) PTY LTD (ABN 30 054 610 025)

NETWORK TEN ALL ACCESS PTY LTD (ABN 60 629 391 117)

APPLE PTY LIMITED (ABN 46 002 510 054)

File number:	CT 1 of 2021
Judgment of:	PERRAM J (DEPUTY PRESIDENT)
Date of Determination:	16 February 2022
Number of paragraphs:	16
Date of hearing:	16 February 2022
Counsel for the Applicant	Mr M Hall SC with Ms R De Stoop and Ms M Evetts
Solicitor for the Applicant	Banki Haddock Fiora
Counsel for Netflix, Inc.	Mr P Brereton SC with Ms L Thomas
Solicitor for Netflix, Inc.	Simpsons Solicitors
Counsel for Stan Entertainment Pty Ltd	Mr J Hennessy SC with Ms A Campbell
Solicitor for Stan Entertainment Pty Ltd	MinterEllison
Counsel for the Walt Disney Company (Australia) Pty Ltd	Ms J M Beaumont
Solicitor for the Walt Disney Company (Australia) Pty Ltd	Ashurst
Solicitor for Network Ten All Access Pty Ltd	Baker McKenzie
Solicitor for Apple Pty Limited	Clayton Utz

TRIBUNAL:	PERRRAM J (DEPUTY PRESIDENT)
DATE OF ORDER:	16 FEBRUARY 2022

Phase	Explanation
Phase One	General issue identification. Parties’ initial positions on issues (as per draft table of key issues). Commencement of ADR process to resolve such issues as can be resolved using a registrar of the Tribunal as a facilitator. This process to continue for as long as necessary in parallel with the other phases. The Tribunal is open to any method the parties favour for facilitating this process (such as an expert panel) if the parties would prefer that.
Phase Two	Articulation of any further schemes in addition to the APRA-AMCOS scheme and the Stan scheme (e.g. the Netflix scheme).
Phase Three	Identification of issues for determination by the Tribunal (this may be reduced progressively as Phase One continues) – production of Initial Issues List
Phase 3A	Document production at the instance of APRA and AMCOS
Phase Four	Preparation of APRA-AMCOS submissions and evidence Format for submissions: · Findings of non-expert facts which will be sought · Findings on expert matters which will be sought · Submissions on each issue in the Initial Issues List. Effort should be made to ensure that the submissions match the Initial Issues List so that the parties’ are talking about the same things. · Brief comments on each clause of each scheme cross-referenced to submissions Evidence to consist of: · Document bundle (documents do not need to be attached to affidavits) · Lay statements · Expert statements
Phase Five	Document production – issue of summonses by all parties if necessary
Phase Six	Preparation of respondents’ submissions and evidence in same format as APRA- AMCOS submissions and evidence (see Phase Four), being submissions and evidence that (1) – responds to APRA-AMCOS’s submissions and evidence; and (2) advances evidence and submissions in respect of any further scheme or licence advanced by any other party (see Phase Two).
Phase Seven	Preparation of APRA-AMCOS submissions and evidence in same format, being submissions and evidence that: (1) is in reply in so far as the APRA-AMCOS scheme is concerned (should include nil entries if no reply necessary); and (2) responds to evidence and submissions in respect of any further schemes advanced by any other party (see Phase Six).
Phase 7A	Preparation of respondents’ submissions and evidence in reply in respect of any further scheme or licence advanced by any other party in same format (should include nil entries if no reply necessary).
Phase Eight	Preparation of: · Narrative statement of facts which are agreed · List of facts which are not agreed with each such fact accompanied by the submissions of each relevant party on that fact (reproduced from the submissions) · Statement of agreed matters of expert evidence · Statement of disagreed matters of expert evidence with the relevant parties’ respective submissions on the disagreements set out.
Phase Nine	Parties to lodge any objections to evidence.
Phase Ten	Tribunal to rule on objections to evidence.
Phase Eleven	Preparation of hearing book. Hearing book to consist of: · Part I: Documents · Part II: Statements marked up with rulings · Part III: Formal documents such as applications Hearing book to be in electronic format (detailed instructions will be provided by chambers).
Phase Twelve	Conference to determine scope of cross-examination of witnesses and scheduling of witnesses. It is not necessary for these to be sequential or to be done in a block.
Phase Thirteen	Cross-examination of witnesses. Transcript to be added to hearing book as Part IV.
Phase Fourteen	Parties to submit revised narrative statements from Phase Eight.
Phase Fifteen	Parties to prepare Final Statement of Issues and Final Submissions in same format as Phase Four (based on Final Statement of Issues).
Phase Sixteen	Parties to submit Submissions Book containing Final Submissions and Final Statement of Issues to the Tribunal. References in the Submissions Book must be hyperlinked to the electronic hearing book.
Phase Seventeen	Tribunal to produce draft determination.
Phase Eighteen	Oral hearing.
Phase Nineteen	Tribunal to make final determination.