Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited [2013] FCAFC 11

The Federal Court has handed down its judgment in the case of Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited [2013] FCAFC 11 (13 February 2013). The case turned on issues of copyright, with the appeal focusing on the definition of 'broadcasting service' in s 6(1) of the Broadcasting Services Act 1992 (Cth).

Background

The question arose in the context of an agreement made between the appellant (PPCA) and the respondent (CRA) on 16 June 2000. The agreement related to the grant, by PPCA to CRA members, of licences in relation to certain sound recordings.  

From 2001, some CRA members, simultaneously with transmission using the broadcasting services bands, streamed radio programs on the internet that included the Sound Recordings. The content of the radio program made available using the internet was identical to the content of the radio program delivered using the broadcasting services bands. 

The question in the appeal was whether the making available of radio programs using the internet in those circumstances is within the licence granted by PPCA under the Member Agreement.  PPCA contended that it was not.  CRA, on behalf of its members, contended that it was. 

Proceedings

By a proceeding commenced on 3 February 2010, PPCA claimed declarations that the communication by CRA members to the public, by means of the internet, of Sound Recordings in the course of operating commercial radio services was not within the scope of the licence granted by the Member Agreement. 

On 15 February 2012, a judge of the Court ordered that the proceeding be dismissed and that PPCA pay CRA's costs of and incidental to the proceeding. 

By notice of appeal filed on 7 March 2012, PPCA appealed from the orders made by the primary judge.  An amended notice of appeal was filed by leave of the Full Court on 20 August 2012.  CRA, in the meantime, filed a notice of contention on 20 June 2012. 

Reasoning

The Court considered that "a broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate or inform.  Thus the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet."

They went on to note that a commercial radio broadcasting licence is granted subject to the condition that the licensee will not provide commercial radio broadcasting services under the licence outside the licence area. As such, if a CRA member provided commercial radio broadcasting services by way of the internet, it would be providing those services outside the licence area.  

They concluded that "clearly, a service that makes radio programs available using the internet will not be a broadcasting service for the purpose of the Broadcasting Act unless the service that makes radio programs available using the internet also uses the broadcasting services bands."

Outcome

The Court concluded that the appeal should be upheld and that the orders made on 15 February 2012 should be set aside. 

Stay current, contact TimeBase for a free trial of our Intellectual Property Point-in-Time product for Australian Legislation.