Phonographic Performance Co of Australia Ltd v Federation of Australian Commercial Television Stations

[50]

There are other compelling reasons to reject the respondent's contentions. The appellants submitted that if s 23(1) were given a wider effect than preventing two copyrights subsisting in the same subject matter, owners of copyright in sound recording embodied in the sound-track of films could have their rights defeated if not impaired. No doubt, as the respondent submitted, the owner of copyright in a sound recording which a film-maker wishes to embody in the sound-track of the film could agree that the owner of the copyright in the film would make some payment to the owner of the copyright in the sound recording in respect of any broadcast of the film. Whether that payment would be a lump sum or royalty would be for negotiation between the parties. But if the owner of the copyright in the sound recording has no right to control copying or broadcasting of that part of the sound-track which embodies the sound recording, there is significant scope for exploitation of the sound recording, by persons other than the maker of the film, which could not be controlled directly by the owner of the copyright in the recording. And it is no answer to say that the owner of copyright in the sound recording may seek to persuade or compel the owner of copyright in the film to take action against the person exploiting the sound recording. The otherwise exclusive rights conferred by s 85 would be significantly reduced. Although counsel for the appellants proffered other, more colourful, examples based upon the use of the film or sound recording in places which do not enforce copyright effectively, we do not think that it is necessary to have recourse to such examples. It is enough to say that the interposition of the owner of the copyright in the film between the owner of copyright in a sound recording and those who may, through medium of the film, seek to use the sound recording is such a significant reduction in the otherwise general rights conferred by s 85 as to warrant close consideration of whether the Act requires such a result.

[60]

At a time when parliament, after lengthy consideration, had decided to grant broadcasting and public performance rights to copyright owners of sound recordings, it would be surprising if those rights were to be curtailed in respect of sound recordings within films without any discussion. Reference should also be made to the Rome Convention [12] which entered into force for Australia on 30 September 1992. In his second reading speech concerning the Copyright Bill 1967 the Attorney-General (Mr N H Bowen) said that the bill would "give effect in part" [13] to the Rome Convention. He went on: It [the Convention] requires certain rights to be given to record manufacturers, to broadcasters, and to performers of musical and dramatic works. The present Bill will give effect to that Convention insofar as it relates to records and broadcasts [14] In D & R Henderson Manufacturing Pty Ltd v Collector of Customs for NSW [15] , Mason J said: If the language of a statute is ambiguous it is permissible to refer to the provisions of an international convention to which the statute is intended to give effect in order to assist in resolving an ambiguity, even if the statute is enacted before ratification of the convention. [16] The Convention does not provide (at least not explicitly) for the producer of a phonogram [17] to receive any remuneration when a film into which a phonogram has been incorporated is publicly performed or broadcast. But accepting that the bill was intended to give effect to those parts of the Convention which related to records and to broadcasts, it by no means follows that there is no broadcast of a sound recording when a film incorporating the sound recording in its sound-track is broadcast. The obligations undertaken in the treaty are minimum obligations. Even treating parliament as intending that what was to become the 1968 Act should give effect to what would have been Australia's obligations if it had then been party to the Rome Convention (in so far as it dealt with broadcasts and records) the Act would do so whichever construction of s 23(1) were to be adopted. No guidance can therefore be obtained from this source. 1. Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 20 April 1966, p 972. 2. EMI Music Australia (1997) 74 FCR 485 at 496. 3. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. 4. Commonwealth, House of Representatives, Copyright Bill 1967, Second Reading Speech, Parliamentary Debates (Hansard), 18 May 1967, p 2328. 5. Commonwealth, House of Representatives, Copyright Bill 1967, Second Reading Speech, Parliamentary Debates (Hansard), 18 May 1967, p 2328. 6. (1974) 48 ALJR 132 at 135; affd (1975) 49 ALJR 335. 7. cf Acts Interpretation Act 1901 Cth, s 15AB(2)(d). 8. A "phonogram" is defined by Art 3(b) as "any exclusively aural fixation of sounds of a performance or of other sounds". A "producer of phonograms" is defined by Art 3(c) as "the person who, or the legal entity which, first fixes the sounds of a performance or other sounds".

[78]

For the purposes of this Act, sounds embodied in a sound-track associated with visual images forming part of a cinematograph film shall be deemed not to be a sound recording. On the face of things, this express provision, apparently addressed to the problem posed by this appeal, affords an answer to that problem. It is the means by which the Act reconciles the grant of apparently inconsistent exclusive rights to different owners. The effect of the section is to maintain the exclusive right of the owner of a sound recording in all situations except where that owner has licensed the embodiment of the sound recording in the sound-track of a cinematograph film in exercise of its exclusive rights under s 85 [24] . Where the sound recording is so embodied in a sound-track of a cinematograph film, by licence from the owner of the sound recording, the exclusive right in relation to the collation of sounds constituting the sound-track (which may or may not contain sounds additional to the original sound recording) is treated by the Act as separate and different from the sound recording. It belongs to the owner of the copyright in the cinematograph film. The broadcast of the sound-track of a cinematograph film does not, therefore, involve the broadcast of the sound recording [25] , as such, because "[f]or the purposes of [the] Act" the Parliament has provided (s 23(1)) that the "sounds embodied in a sound-track" are "deemed not to be a sound recording". In short, they are to be dealt with, and dealt with only, in terms of the rights of the owner of copyright in the cinematograph film. 1. The exclusive rights extend to making a copy of the sound recording (s 85(a)); causing a recording to be heard in public (s 85(b)) and broadcasting the recording (s 85(c)). Note the use of the definite article in par (c). It is "the" recording which attracts the exclusive right. It is not the reproduction of the recording in a new technical format, separately treated for copyright purposes, such as the sound-track of a cinematograph film. For that, s 86 of the Act separately provides. 2. For the purposes of ss 85(c), 109, 152.

Phonographic Performance Co of Australia Ltd v Federation of Australian Commercial Television Stations - [1998] HCA 39 - HCA 1998 case summary — Zoe

At a glance

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Judgment (105 paragraphs)

Parties

Cases Cited (8)

Cited By (1)