Gramophone Co Ltd v Leo Feist Incorporated [1928] HCA 23;

Gramophone Co Ltd v Leo Feist Incorporated [1928] HCA 23; - HCA 1928 case summary — Zoe

[26]

If the contentions so stated embraced all that is involved in the situation, I should still think the respondent's position the stronger, because the dominant purpose of the Act is, in my opinion, to protect property which, perhaps more than any other form of property, morally appertains specially to the owner. The relaxing provisions of sec. 19, adopted in principle from American legislation of 1909, as to which I am not able to find assistance from any relevant judicial decision, is an inroad into the rights primarily created, but an inroad that is only lawful under the statutory conditions. If it were necessary for the purposes of this case to resolve any ambiguity in the language of the statute, I should feel justified on recognized principles in considering the occasion of its enactment and the evils to be met, and notably, art. 13 of the Revised Berne Convention of 1908 (sometimes called the Berlin Convention). But I do not find any ambiguity in the language of the statute; nor do I see any justification for sub-ordinating the absolute rights of authors of musical works to the works themselves, or to payment for them, to the conditional rights of persons desiring to reproduce those works. As I read the statute, the two sets of rights are quite susceptible of adjustment without departing from ordinary lines of honesty and fair dealing. It would, in my opinion, be such a departure if a reproducer could at will include on one record (say) four different works belonging respectively to four different copyright authors in various parts of the dominions to which the Act extends, and, pending discussion and agreement, or possibly arbitration, between all four authors, could without challenge proceed to trade, and, it may be, exhaust the market in at least one important work, and without any security to the author. It would be absurd to suppose four sets of stamps each of 5 per cent affixed, and one set would either leave some of the copyright owners unpaid and unsecured or leave the matter in the present confusion. I have now arrived at the point where I may with better advantage state what I believe to be the intention of the Legislature.

[28]

Assuming only one owner or one set of joint owners of the copyright, nothing more is needed to enable the reproducer to pay for each contrivance sold by him. The Regulations may prescribe payment prior to, contemporaneous with, or subsequent to, the sale. They may also prescribe, according to the circumstances, payment to the copyright owner or for his benefit (see per Maule J., in arguendo, in Wood v Adcock[6]). But sub-sec. 4 contemplates circumstances where two or more different works belong to two or more different copyright owners, and a consequent apportionment is necessary between them of the total sum payable by the reproducer, a sum assumed to be greater than in the case of a single work, because the price factor is higher. How, then, is the apportionment to be made? In the answer to this question I find the simple solvent of the central difficulty around which the parties have fought. How is the reproducer to know his debt to each copyright owner? The sub-section says: "the sums payable by way of royalties under this section shall be apportioned amongst the several owners of the copyright in such proportions as, failing agreement, may be determined by arbitration." The enactment is not expressly limited to arbitration confined to the copyright owners; and there is no reason why it should be. On the contrary, there is every reason why the words, large and impersonal as they are, should be read so as to make the scheme effective and honestly effective. There is no positive legislative direction as to agreement. The sub-section assumes the power existing apart from this Act, of all parties concerned to settle the matter by agreement; and, if that is done, the sub-section is silent. But, "failing agreement," it enacts that the "sums payable," that is, the total sum payable by a reproducer in a given case, "shall be apportioned among the several owners of the copyright in such proportions as ... may be determined by arbitration." (Compare Imperial Local Government Act 1888 (51 & 52 Vict. c. 41), sec. 62.) I entirely assent to the suggestion of Harvey C.J. in Eq. in Albert's Case[7] that the sub-section is "a statutory submission to arbitration between all parties interested, namely, by the maker of the record and the persons respectively entitled to the copyrights in question." The Arbitration Act of New South Wales (No. 29 of 1902, sec. 27), in which State the dispute occurred, is applied to sub-sec. 4 of sec. 19 of the Commonwealth Copyright Act. I must say I cannot understand why the reproducer, having the conditional right to sell and willing to pay to each copyright owner the price appropriate to him, so as to perform the condition, has not a sufficient interest to invoke the powers of the Arbitration Act in order to determine how much he was bound to pay. It is trite law that whatever may be the subject of civil litigation may be referred to arbitration. All civil rights may be referred (per Gibbs C.J. in Baker v Townsend[8]). If the several rights and obligations were contained in a contract between the parties, no doubt would exist. It is hopeless to look for a distinction in this respect merely because the parties are brought together by statute in the same justiciable relations. Even a stranger to an action, but interested in the subject matter, may be a voluntary party to an order referring it to arbitration, and be bound by the order. (See Williams v Lewis[9], and particularly Stockley v Shopland[10]: reference may also be made to Carter v Carter[11]; Winter v White[12]; and, generally, see Russell on Arbitration and Award, 11th ed., pp. 1 et seqq.) But in truth no reason has been urged against the view that the reproducer may proceed to arbitration if no agreement is come to; it has rather been tacitly assumed he cannot, but in my opinion he can. It is a principle of law as old as the Year Books, the "being in case of an arbitrament, which is by intendment of law to make peace, and to put a perfect end to matters in controversy." As the judgment of Park J. in Winter v White[13] shows, it is this principle that is important, and it may be applied in various ways. I apply it to the construction of the sub-section. By this means the full provision is made (Tabernacle Permanent Building Society v Knight[14]) whereby, before selling a single record, the reproducer may ascertain the precise amount he is bound to pay to each copyright owner. If to suit his own business advantage he prefers to adopt a course involving delay, that is his concern, and he must follow it out; if he prefers to adopt a single line of procedure, it is open to him. But he cannot, as I conceive, adopt the arbitrary and unreasonable and, as I think, dishonest course of deliberately creating a complication and leave others not responsible for it to disentangle the matter, while he enjoys their property without consideration. I do not suggest dishonesty in this case, but the contention, if correct, would authorize conduct that would be dishonest.

[29]

Although I think it is not strictly necessary to go further, because, in my opinion, what I have just said is fatal to the respondent, I regard it as desirable in the circumstances to express my views as to criticisms directed in argument to some of the regulations. I add nothing to my observations regarding No. 43. No. 44 requires the copyright owner to do two things, one of which can be done at once, whereas the other may not be possible at once. The first is a duty resting on the copyright owner, namely, to intimate where in Australia "adhesive labels" can be obtained from him. So far, specific denominations are not in question. The second duty arises only on a further step by the reproducer. And it is at this step that the appellant's difficulty - a self-created difficulty - arises. The reproducer must, in writing, demand "required denominations" and pay for them "a price equal to the amount of royalty represented thereby." If the reproducer is by the course he has adopted, unable to state "the required denominations," he can proceed no further lawfully, always supposing the copyright owner has indicated the place where "labels" can be obtained. If, however, the copyright owner has failed for five days, as in this case, to give the necessary intimation, or if, having given the intimation, the demanded labels are not supplied within three days, the reproducer may proceed further. But to what extent? In either case (reg. 46) the "contrivances may be delivered to purchasers without having labels affixed" - that is, there need not be payment in advance, or contemporaneous, whichever it may be thought to be. But, says reg. 46, "the amount of royalties shall be a debt due" by the reproducer to the copyright owner, and the reproducer "shall keep an account of all such contrivances sold by him." In my opinion, the last-mentioned provisions, "debt due" and "keep an account," are competent regulations. The provision as to "debt due" is really what the Act itself requires when once the Regulations give permission to deliver the records unlabelled, that is, when payment to the copyright owner in advance is not required. Except where a label is affixed, payment, even contemporaneous, to the copyright owner where a record is sold would be unreasonable, and, indeed, impossible. The expression "debt due" imports an immediate debt, a definite sum of money immediately susceptible of precise statement. The "account" required is not an account of indebtedness in money terms: it is an account of the "contrivances sold," that is, the number and the prices at which they are sold. It is, therefore, clear that "the account" does nothing to reduce to precision the amount owing, except so far as it supplies some necessary factors to which the agreed or award "proportion" can be applied. The term "debt due," as stated, primarily connotes a sum ascertained or ascertainable arithmetically. It also primarily and justly attracts the common law rule that the debtor must without request seek his creditor, if within the jurisdiction, and pay him (per Parke B. in Walton v Mascall[15]; per Erle C.J. in Fessard v Mugnier[16]; and per Lord Blanesburgh for the Judicial Committee in Bansilal Abirchand v Ghulam Mahbub Khan[17]). The provision as to accounts does not alter the primary effect of "debt due." It is enacted for securing the copyright owner, by enabling him so far as to test to some extent the accuracy of the payment. But it would afford him little if any security unless he were first made aware that sales had been made. These are peculiarly within the knowledge of the reproducer who sells; and on the principle of Vyse v Wakefield[18] and Makin v Watkinson[19], notice, and immediate notice, comes more properly from the reproducer. There is, therefore, nothing which alters the primary effect of "debt due." The common law in that case, in the absence of statutory provision, regulates the rights and obligations of parties according to their relative positions and the circumstances. (See Dominion of Canada v City of Lévis[20] and Williams v North's Navigation Collieries (1889) Ltd[21].) It is plain also, that even if a demand were necessary, it would be impossible until the amount to be demanded were known.

[34]

I need not repeat in detail the facts stated in the special case with the correspondence incorporated, but I must state what seems to me to be the vital position. On 23rd February 1927 the defendant gave notice to the plaintiff, the owner of the musical work, "I would not be one bit surprised," of an intention to make and sell discs reproducing that work, and that another copyright work was to be reproduced on the same disc; and on the same date the defendant gave a corresponding notice to Messrs. J. Albert & Son, the owner of the other copyright work, "Got no time." Neither owner complied with regs. 44-46 by sending to the defendant an intimation of a place from which adhesive labels could be obtained; and, as a consequence, under reg. 46 (if valid) the defendant became entitled to deliver his discs to purchasers without labels, but the amount of the royalties became a "debt due" by the defendant, and the defendant had to keep an account of all such contrivances sold by him. On 14th April the defendant sent to each of the owners 7s. 10d., being half the royalty payable at 2½d. on the 75 discs which he had sold; but each owner rejected the amount tendered, claiming for his work a larger proportion than half of the royalty. Under sec. 19 (4) the sums payable as royalties have to be apportioned between the two owners "in such proportions as, failing agreement, may be determined by arbitration." In my opinion, the apportionment is not, under the Act, any concern of the infringer; but certainly he was not entitled to assume that each was entitled to one-half. The Regulations might have provided that in such a case the infringer might discharge himself by payment into some joint account, or otherwise; but they did not. The result is that at the time of those proceedings - (sec. 19 (2) is a procedure section not a provision for a licence) - the royalties have not been in fact paid to or for the benefit of the plaintiff, the owner of copyright in this song, either as prescribed by the Regulations or otherwise. Even if the word "owner" in sec. 19 (2) (b) is to be read as "owners" - the two owners - the royalties due to them have not been paid to them. Even if, in reg. 46, we accept the provision that the amount of the royalties "shall be a debt due" to the owner (or owners), it is sufficient to say that that debt has not been paid before the proceedings; and the infringement must be deemed to be an infringement unless the conditions of exemption in sec. 19 (2) have been strictly fulfilled.

[41]

Sir Edward Mitchell has argued that the British Act has not been extended to Australia in the manner required by sec. 25: modifications and additions have been made, he contends, which do not relate exclusively to procedure and remedies - particularly sec. 11 and Part III. of the Australian Act. He concludes, therefore, that the Australian Act, and the British Act scheduled to the Australian Act, operate only under the power with respect to copyright conferred by sec. 51 (XVIII.) of the Constitution and within the territorial limits of Australia. We do not agree with this argument. As to sec. 11 of the Australian Act, that seems to be only a modification of the procedure contained in sec. 26 (3) of the British Act, and in any case a necessary adaptation of the Act to the circumstances of Australia. And Part III. only purports to deal with remedies, and we find nothing in it that deals with anything else. Its provisions also may well be said to be necessary to adapt the Act to the circumstances of Australia. Constitutionally we should say that the operation of the British Act in Australia depends upon the joint operation of the Imperial and Australian legislation. It is not limited in operation to the actual territory or jurisdiction of the Parliament of the Commonwealth: it extends throughout His Majesty's dominions, and the self-governing dominions that have declared it to be in force. That is of no little importance in the interpretation of sec. 19 (2): "It shall not be deemed to be an infringement of copyright in any musical work for any person to make within the parts of His Majesty's dominions to which this Act extends records ... or other contrivances by means of which the work may be mechanically performed, if such person proves (a) that such contrivances have previously been made by, or with the consent or acquiescence of, the owner of the copyright of the work." We concur in that part of the opinion of Irvine C.J. in which he says that the contention cannot be supported that there is a distinct Australian copyright, and that sec. 19 (2) only applies to such copyright when the prior making of contrivances, by means of which the work may be mechanically performed, has been in Australia with the consent of the owner of the Australian rights. In our opinion, the making of the contrivances, with the consent of the owner of the copyright, in any part of the area to which the Act applies, releases the work throughout the area of the operation of the Act (see Copinger on Copyright, 6th ed., p. 231). The section proceeds: "and (b) that he has given the prescribed notice of his intention to make the contrivances, and has paid in the prescribed manner to, or for the benefit of, the owner of the copyright in the work royalties in respect of all such contrivances sold by him, calculated at the rate hereinafter mentioned." The Copyright Regulations 1913 (No. 338 of 1913) prescribe the form and contents of the notice (clause 43).

[43]

Finally, is it proved that the Gramophone Co. - the maker of the gramophone record - has paid in the prescribed manner to, or for the benefit of, the owner of the copyright in the work royalties in respect of all such contrivances sold by it? In point of fact, no payment has been made to or for the benefit of the owner of the copyright in the musical works reproduced upon the gramophone record. Several arguments were presented to us on this branch of the case. One was to this effect: the obligation of the Act is to pay; that obligation arises, however, only when the amount of the royalties has been lawfully ascertained and falls due. And there is no failure to pay unless the amount has been ascertained by agreement or arbitration pursuant to sec. 19 (4) of the Act in the case of any contrivance being made which reproduces two or more different works in which copyright subsists. The former proposition may be conceded, but the latter appears to us to be in direct conflict with the provisions of the Act itself. The royalty is upon the contrivance; it is fixed and ascertained by the Act (sec. 19 (3)), and is payable upon all contrivances sold by the person making them. In our opinion there is nothing in the Act which conditions the payment of royalties upon the apportionment thereof between the owners of different musical works. Another argument was based upon clauses 44 and 46 of the Copyright Regulations. Notice of intention, it was said, to make or sell the contrivance had been duly given to the owners of the copyright in the musical works reproduced upon it, and they had not intimated any place within the Commonwealth from which adhesive labels could be obtained. Consequently, it was concluded that the contrivance might be delivered to purchasers without having labels affixed, and, by clause 46, "the amount of the royalties shall be a debt due by the person making the contrivances to the owner of the copyright and the person making the contrivances shall keep an account of all such contrivances sold by him." This clause of the Regulations derives its force from the power contained in sec. 19 (6) of the Act to make regulations prescribing the mode, time and frequency of the payment of royalties, including regulations requiring payment in advance or otherwise securing the payment of the royalties. In Monckton v Pathé Frères Pathephone Ltd[24] the Court of Appeal upheld the validity of clause 44 of the Regulations but it was not called upon in that case to consider either the construction or the validity of clause 46. It has been argued, following a suggestion in a well-known work, that clause 46 operates to postpone payment of royalties until demand for payment has been made (see Copinger on Copyright, 6th ed., pp. 90 and 236). But the true effect of the clause is rather to dispense with the provision in clause 44 that royalties shall be payable by means of adhesive labels, and to prescribe that the obligation to pay royalties under the Act shall rest in debt. An account of the contrivances sold is to be kept so that the amount of the royalties payable can be checked and the amount of the debt easily proved. All that can be said is that the Regulations prescribe in the given case that royalties shall be a debt and therefore payable as a debt. There is nothing postponing payment and, if the amount of the royalty be a present debt of certain amount, then the immediate obligation of the debtor is to pay that debt. The debtor, though knowing the amount of the debt and the persons entitled to it, cannot ascertain in what proportions that amount should be divided between those persons unless they agree or go to arbitration upon the matter. The Copyright Act is explicit that any person making contrivances by means of which a musical work the subject of copyright may be mechanically performed infringes that copyright unless he proves, amongst other things, that he has paid in the prescribed manner royalties in respect of all such contrivances sold by him. If a manner has been prescribed, then he must prove payment in that manner; if no manner has been prescribed, he must prove payment in some way before he can claim the protection afforded by the Act of Parliament. In our opinion a more perfect definition of the mode and time of payment should be prescribed by those administering the Copyright Acts, so as to render effective the protection contemplated by such Acts. We have not been convinced of the invalidity of clause 46 even if its meaning be that suggested by Copinger, but we do not consider it necessary further to pursue the question.

[56]

As to the first objection, I cannot agree with the contention that the prescribed notice under reg. 43 (1) had not been given by the intending producer. All the Act requires the producer to do, so far as the notice is concerned, is to give "the prescribed notice of his intention to make" the contrivance. The notice prescribed in reg. 43 (1) is as follows: - "The notice required by sub-section 2 of section nineteen of the British Copyright Act shall contain the following particulars: (a) The name and address of the person intending to make the contrivances; (b) the name of the musical work which it is intended to reproduce and of the author (if known), and (if necessary) a description sufficient to identify the musical work; (c) the class of contrivance on which it is intended to reproduce the musical work, (e.g.) whether discs, cylinders or music rolls; (d) the ordinary retail selling prices of the contrivances, and the amount of the royalty payable on each contrivance in respect of the musical work; (e) the earliest date at which any of the contrivances will be delivered to the purchaser; (f) whether any other work is to be reproduced on the same contrivance with the musical work specified in accordance with paragraph (b)." In this case it appears clear to me that the producer gave all the information required by the regulations in question in the notices he gave to each of the owners. That will be seen by the notice to the plaintiff in this case, which is as follows: - "The Copyright Act 1912 (Commonwealth of Australia) and the Copyright Act 1913 (New Zealand). - The Gramophone Company Limited of Railway Parade Erskineville Sydney NSW in compliance with the Regulations issued under the above Acts hereby give you notice of their intention to make and sell discs reproducing the following musical works: - Title - I wouldn't be one bit surprised; author Donaldson; description of work (if necessary); ordinary retail selling price of disc - Aust. 4s., N.Z. 4s. 6d. The total amount of royalty payable on each disc is A. 2½ N.Z. 2¾ and the amount of royalty payable in respect of the musical work to which this notice relates is such proportion thereof as failing agreement between or amongst the several copyright owners may be determined by arbitration. The earliest date at which delivery of discs will be made to purchasers is 5th March 1927. (An)other copyright work is to be reproduced on the same disc with the musical work specified above. The title of such other copyright work is - Got no time. Whiting. Dated this 23rd day of February 1927. - To the Owner of the Copyright, c/o Messrs. Allan & Co. Pty. Ltd., 276 Collins Street, Melbourne." The actual amount of the royalty to be paid to each of the two owners cannot possibly be given in the preliminary notice because the Act and Regulations provide that that can only be decided by agreement of the parties or by arbitration - not by the producer before notice. Neither can the producer intimate more than the total amount of royalty on each disc, namely, 5 per cent on the price at which it is intended to sell the discs: and in this case that was given, namely, 4s. in Australia and 4s. 6d. in New Zealand - so that the total amount of royalty to be paid on each disc sold in Australia would be 2½d., equal to 5 per cent on the selling price in Australia, and 2¾d. per disc, equal to 5 per cent on the selling price in New Zealand. That is all the Act and Regulations require, and all, so far as I can see, the intending producer could do at that time before he had the right to sell any disc. In addition to that, he pointed out that the proportions of that 5 per cent to which each of the owners would be entitled were to be decided by agreement of the parties or by arbitration. For the reasons mentioned I am satisfied that the intending producer gave to the owners the notice required by reg. 43.

[60]

The appellant proved that before making or disposing of any of the contrivances in question, it gave the prescribed notice of its intention to make the contrivances (first part of clause (b) of sub-sec. 2 of sec. 19 and clause 1 of reg. 43). The royalties are not payable under sec. 19 read by itself until after a sale and the amounts to be paid are calculated by the amount actually received by sales (see sub-sec. 3 of sec. 19). Regulations may, however, be made prescribing payment in advance. The only regulation which could be construed into causing payment in advance is reg. 41, dealing with adhesive labels, but could only be complied with after the price of the labels was fixed by the owners. The royalties referred to in sec. 19 (2) (b) are therefore only to be paid in the prescribed manner after the making and sale - for condition (b) only requires the producer to pay the royalties in respect of all such contrivances as are sold by him "at the rate hereinafter mentioned" (5 per cent - sub-sec. 3 of sec. 19). Until sales the payment to be made cannot be ascertained as the amount is 5 per cent on sales. The Act, therefore, as well as the regulation authorizes the making and sale before payment - subject to the producer complying, so far as he is concerned, with the prescribed regulations. After the prescribed notice mentioned (sub-sec. 2 (b) of sec. 19) had been given, the next duty was placed on the owner of the copyright by clause 2 of reg. 44. This regulation provided that after the person proposing to make the contrivance has given the prescribed notice (and this Court has held that he has given it) "the owner of the copyright shall" (1) "by writing, sent by registered post, intimate to him some reasonably convenient place within the Commonwealth of Australia from which adhesive labels can be obtained, and" (2) "on demand in writing and tender of the price shall supply from such place adhesive labels of the required denominations at a price" (3) "equal to the amount of royalty represented thereby." It is admitted that this intimation was not given by the respondent, or any intimation except that it could not agree with the owner of the copyright in the other musical work as to the proportions due to each; and that the prices they required exceeded the total amount of the royalty fixed by the Act. That the intimation was not given by the owner is clear from the following paragraph (10) in the special case submitted for the opinion of the Court: - "The plaintiff did not intimate to the defendant by writing sent by registered post within five days of the defendant's giving notice of its intention to make gramophone records of the said musical work in the statement of claim referred to or at all some reasonably convenient place within the Commonwealth of Australia from which adhesive labels for the payment of royalties could be obtained and has refused to supply such labels within three days after demand made therefor and the defendant has kept an account of all gramophone records of the said work sold by it. No gramophone records of such musical work were sold before the expiration of five days from the defendant's notice of its intention to make the same." Reg. 45 follows: "Subject to these Regulations no contrivance shall be delivered to a purchaser until such label or labels denoting the amount of royalty have been affixed thereto" &c. Reg. 45 could not possibly be observed by the appellant Company unless and until the respondent complied with its provisions and agreed to fix the price for the labels, or agreed to some other method of payment. The owners in this case did not agree to supply any adhesive labels or agree to any other mode of payment. The proper authority, however, in anticipation of the possibility of some owners attempting to prevent the publication of musical works on contrivances, as the owners did here, made an alternative regulation enabling persons to make and sell contrivances before obtaining labels if the owners refused to comply with reg. 44. By reg. 46 it was provided that in cases where royalties are payable by means of adhesive labels and such labels are not available either because "(a) after the expiration of five days from the date of the prescribed notice of the intention of the person making the contrivances to make or sell such contrivances the owner of the copyright has not duly sent" the intimation referred to in clause 2 of reg. 44, "or (b) the owner of the copyright refuses or neglects to supply such labels within three days after demand duly made, contrivances may be delivered to purchasers without having labels affixed ... and the amount of the royalties shall be a debt due by the person making contrivances to the owner of the copyright, and the person making the contrivances shall keep an account of all such contrivances sold by him." The words used clearly authorize the producer, if the owner fails to comply with either condition (a) or (b), to make and sell records without obtaining labels when the owners fail or refuse to obey the regulation, and necessarily postpone the payment until the rates are agreed to or fixed by the owners or by arbitration instituted by the owners, or by compulsory arbitration forced by the producer if he has the power to do so. The Act, by sub-sec. 6 of sec. 19, authorizes regulations to be made as to the mode, time and frequency of payment of royalties, and also regulations as to requiring payment in advance or otherwise securing the payment of royalties. The validity of a regulation similar to reg. 46 under the same Act was upheld in the case of Monckton v Pathé Frères Pathephone Ltd[25].

[66]

The duty to send the intimation (reg. 44), which the owner failed to do, is clearly on the owner, and the failure within five days to do so is sufficient to authorize the producer to continue selling the records (reg. 46). It is, however, argued that the producer, so far as it was necessary to fix proportions and prices, had a right and a duty, before he could make or sell the contrivances, to enforce arbitration if the owners failed to agree or to arbitrate. I do not agree with that view. I hold that on a proper construction of the Act and Regulations the duty to agree to the amounts to be paid to each owner or, failing agreement, to settle them by arbitration or in some other way, is a duty imposed by the Act and Regulations on the owners of the copyright, who have all the information necessary for the purpose, and is not a duty cast on the producer in any event. This view, I hold, is supported by the following facts: - (1) All the producer has to do under the Regulations when the intimation is not sent or when the labels are not available, is to keep an account of the sales until the proportions are fixed or labels are available. The actual payment is not due in such a case under the prescribed regulations until the labels are available or prices agreed to or fixed to enable him to pay or tender the proper amounts to each owner. (2) The Act provides for payment to the owners of the copyright or to some one for the benefit of the owners. If a regulation were passed naming some official to whom the 5 per cent royalty could be paid, the interest (if any) of the producer in question on payment to the official in such a case would surely be ended. (3) The producer is not concerned in the slightest as to the proportions to be received by the respective owners of the 5 per cent royalty: all he has to do is to pay the 5 per cent fixed by the Act. (4) The Regulations only allow the owners in the first instance five days to fix the proportions and to send the intimation required by reg. 44. Generally speaking, it would be possible for owners to fix prices with or without an orbitrator in that time, but the Regulations provide that if both conditions are not complied with in that time the producer can sell records, but he must keep an account of them. That would necessarily include until prices are fixed or until demand by the owners of rates agreed to or fixed, not exceeding in all 5 per cent.

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Gramophone Co Ltd v Leo Feist Incorporated [1928] HCA 23; (1928) 41 CLR 1 (20 August 1928)

Parties

Legislation Cited (5)

Cases Cited (1)