REFERENCE UNDER S154 BY THE AUSTRALASIAN PERFORMING RIGHTS ASSOCIATION LIMITED RE AUSTRALIAN BROADCASTING COMMISSION

The Australasian Performing Right Association Limited (APRA) sought to enforce a licence scheme against the Australian Broadcasting Commission (ABC) for the use of copyrighted works in broadcasting and television services. The ABC contested the Tribunal's jurisdiction over the dispute, arguing that it is an instrumentality or agency of the Commonwealth and thus exempt from copyright infringement under section 183 of the Copyright Act 1968. The central legal issue was whether the ABC is an instrumentality or agency of the Commonwealth as defined in section 183 of the Act. The court found that while the ABC is a statutory corporation established by the Commonwealth, it was created to provide independent broadcasting services. The court considered several factors, including the ABC's capacity for autonomous operation, its ability to control its own activities and property, and its funding primarily through public funds with certain restrictions. The court concluded that the ABC is not an instrumentality or agency of the Commonwealth, and thus the Tribunal has jurisdiction to hear the case. The court did not make any orders at that stage but adjourned the matter to allow the parties to consider the reasons.