WEA Records Pty Ltd, Application under s 152

[1982] ACopyT 1

IN THE COPYRIGHT TRIBUNAL              FILES NOS. 1A-G of 1980

THE COPYRIGHT ACT 1968

APPLICATION UNDER S. 152 BY

W.E.A. RECORDS PTY. LIMITED
  & ORS

THE TRIBUNAL:                  LOCKHART J. – DEPUTY PRESIDENT

DIRECTIONS HEARING

On 18 December 1981 certain orders were made by consent by this Tribunal relating to procedural matters involved in preparing the respective cases of the parties for hearing. The orders were entitled "In Matter No. lA of 1980", Matter No. lA of 1980 being but one of seven applications numbered 1A to 1G before the Tribunal.  Notwithstanding that the order is thus entitled, I have no doubt that when the orders were made it was present to my mind that they were intended to apply to all seven applications.  Counsel for the broadcasters has made it clear that was his understanding and nothing to the contrary has been put by counsel for the record companies. So I shall act on that assumption.
                  Today after notice had been given as early as February this year, both to the broadcasters and to the Tribunal itself, counsel for the record companies sought an order that the hearing which is fixed to commence on 11 October next should proceed only in relation to one of the seven applications, namely, application number lA which involves only one of the broadcasters, namely, Stereo F.M. Pty. Limited which operates FM Broadcasting Station 2 MMM Sydney. There was no evidence adduced in support of the application or, indeed, against it except certain documentary evidence.
                  I am satisfied from what the evidence established and what I have been told from the bar table that it would confront the record companies with serious practical difficulties if the hearing were to proceed in October in respect of all seven applications rather than just application lA of 1980. I need not refer to the difficulties in detail but I will briefly summarise them as follows.
                  Amongst the orders made by consent on 18 December 1981, which really embodied in the formal orders an arrangement that had been struck between the parties a short time before, is an order that the broadcasters serve upon the solicitors for the record companies on or before 7 January 1982 each of the logs kept by it from 1 October 1980 until 30 April 1981. I am told that that order has been complied with.
The second order is the key to the problem. It provides that the record companies provide the solicitors for the broadcasters with particulars as to each of the sound recordings identified in those logs, being the right conferred on owners of copyright in sound recordings by s 85 (c) of the Copyright Act 1968.
The other orders are consequential to that order relating to the filing and serving of statements to parties and other ancillary matters‑, but they do not commence to operate until the particulars mentioned in order 2 have been supplied. The problem that was found to arise after the logs were served in conformity with order 1 was that the task of going through the various logs and culling them into those which have the right conferred on owners of copyright in sound recordings by s. 85 (c) and others is a somewhat mammoth task involving a considerable amount of time being spent by people trained to perform this task which, apart from other difficulties, does involve making judgments on matters of law which are not entirely easy and which must be made, in effect, with each record included in the log.
                  If the operation of order 2 were to remain as it presently does with respect to each of the broadcasters, and therefore, each of the logs the subject of the orders, it is plain that the hearing date would have to be vacated, apart from the inconvenience and expense which would be caused to the record companies. Following discussion between counsel, what has emerged is this; that the record companies seek now to have the hearing proceed in October in respect of application lA only; that the other applications should be adjourned until that day for mention and directions only and that the obligations imposed upon the parties by the consent orders of 18 December 1981 should remain alive in the case of each of the broadcasters and each of the record companies but that their operation should be suspended until further order.
In practical terms what this means is simply that the parties should proceed to prepare their cases in relation to application lA for hearing in October next and that they are not obliged in the meantime to comply with the requirements of order 2 and therefore, of course, the consequential orders 3 to 6 in relation to applications 1B to G inclusive but, nevertheless, the obligation to comply with order 2 still remains on the part of the record companies albeit that its operation is temporarily suspended. Of course, it is open to any party to bring the matter back at any time to deal with any problems that might arise in the meantime or if there is a change in circumstances.
                  Although the broadcasters oppose the splitting of the hearing so that the only matter to proceed is application lA, I think, in all the circumstances, that this is the sensible and practical course to adopt and‑I propose to adopt it.
In the result no variation is sought by the record companies to the orders of 18.December.1981 in respect of application lA and so far as the applications 1B to G inclusive are concerned, what is sought is that the operation of orders 2 to 6 inclusive be suspended until further order.
                  Accordingly, I order:

1.    That the operation of orders 2 to 6 inclusive of the orders made by consent on 18 December 1981 be suspended until further order in relation to applications 1B to 1G inclusive.

2.    That those applications be adjourned until 11 October for mention or further directions, as the case may be.

3.    The orders presently made in relation to application 1A of 1980 including the order fixing the day for hearing on 11 October stand.

4.    Any party is at liberty to apply on three days' notice.

The broadcasters seek an order that the record companies pay their costs of today's application on the basis that they have been brought here to resist an application which has, in substance, not succeeded. There is much force in this but, on the other hand, in the course of discussion in a difficult matter, a sensible result as to future proceedings has been arrived at with, I think, benefit to all parties, not merely, the successful party. I think the appropriate order for costs is that the costs of the broadcasters be costs in the proceedings
Accordingly, I further order:

1. That the costs of the broadcasters of today’s application be their costs in the proceedings.