Copyright Act ruled not Inconsistent with the Australian Constitution

The High Court of Australia has recently ruled in the case of Phonographic Performance Company of Australia Limited v Commonwealth of Australia [2012] HCA 8 that the licensing provisions under s 109 and 152 of the Copyright Act 1968 is not invalid by reason of s51 of the Australian Constitution.

The plaintiffs in this case brought proceedings to the High Court to challenge the imposed amount “cap” to pre 1969 sound recordings provided for by s 152 of the Act. It was submitted that allowing a Tribunal to determine the amount for a compulsory licence from the owner of pre 1969 recordings effected an acquisition of property on other than just terms and thus was contrary to s51(xxxi) of the Constitution.

The High Court held unanimously that the Act excluded further operation of any acts prior to it and denied subsistence of copyright otherwise than by virtue of the Act. Sections 109 and 152 therefore did not operate to qualify the copyright of the plaintiffs under the 1911 Act and so did not constitute an acquisition of the property in the pre 1969 recordings.

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