February 17, 2012

Aussie Court: No Extra Royalties From Radios Streaming On Web

Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited
[Feb. 15, 2012] FCA 93.

The issue before the Australia Federal Court was whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet.

Phonographic Performance Company of Australia Ltd (PPCA) is a copyright collecting society representing the interests of copyright owners and recording artists in relation to the broadcast, communication to the public and public performance of recorded music and music videos in Australia. It offers non-exclusive licences of the copyright in a large repertoire of commercially released sound recordings for particular purposes. Commercial Radio Australia Limited (formerly called “The Federation of Australian Radio Broadcasters Limited”) (CRA) is an incorporated industry body representing the interests of commercial radio broadcasters in Australia who make use of such sound recordings in their day-to-day commercial activities.

By an umbrella Licence Agreement between PPCA and CRA (the Industry Agreement), PPCA agreed to grant to each member of CRA a nonexclusive licence of “… the Broadcasting Right in the PPCA Sound Recordings” for a certain period. Some radio stations which are members of
CRA have streamed their radio programs on the Internet. This streaming service involves the
simultaneous transmission of radio programs using the broadcasting services bands and the
Internet. The content of the radio programs made available over the radio and via the Internet
is the same. PPCA contends that, as a result of the the interplay between certain provisions of the Australian broadcasting and copyright law, the licence which PPCA agreed to grant to members of CRA did not include the right to make available to the public PPCA Sound Recordings in radio programs delivered via the Internet at the same time as making those recordings available to the public by means of a radio broadcast. CRA argues, on the other hand, that the existing licence does include that right.

The Court held that the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement. PPCA failed to make out its case.