152Applications to Tribunal for determination of amounts payable for broadcasting published sound recordings

152  Applications to Tribunal for determination of amounts payable for broadcasting published sound recordings  (1) In this section, unless the contrary intention appears: Australia does not include the external Territories other than Norfolk Island. broadcaster means:  (a) the Australian Broadcasting Corporation; or  (aa) the Special Broadcasting Service Corporation; or  (b) the holder of a licence allocated by the Australian Communications and Media Authority under the Broadcasting Services Act 1992; or  (c) a person making a broadcast under the authority of a class licence determined by the Australian Communications and Media Authority under the Broadcasting Services Act 1992. broadcasting does not include broadcasting by a transmission for a fee payable to the person who made the broadcast.  (1A) For the purposes of the application of this section in relation to a period before the commencement of this subsection, this section has effect as if any act or thing done during that period by the Australian Broadcasting Commission had been done by the Australian Broadcasting Corporation and any earnings of the Australian Broadcasting Commission during that period were earnings of the Australian Broadcasting Corporation.  (1B) In its application in relation to a period before the commencement of this subsection, this section has effect as if any act or thing done during that period by the Special Broadcasting Service had been done by the Special Broadcasting Service Corporation and any earnings of the Special Broadcasting Service during that period were earnings of the Special Broadcasting Service Corporation.  (2) Subject to this section, an application may be made to the Tribunal for an order determining, or making provision for determining, the amount payable by a broadcaster to the owners of copyrights in published sound recordings in respect of the broadcasting, during a period specified in the application, of those recordings by that broadcaster.  (3) An application under the last preceding subsection may be made by the broadcaster or by the owner of a copyright in a published sound recording.  (4) The parties to an application under subsection (2) are:  (a) the person making the application; and  (b) such organizations or persons as apply to the Tribunal to be made parties to the application and, in accordance with the next succeeding subsection, are made parties to the application.  (5) Where an organization (whether claiming to be representative of broadcasters or of the owners of copyrights in published sound recordings or not) or a person (whether a broadcaster or the owner of a copyright in a published sound recording or not) applies to the Tribunal to be made a party to an application under this section, and the Tribunal is satisfied that the organization or person has a substantial interest in the matter that is the subject of the application, the Tribunal may, if it thinks fit, make that organization or person a party to the application.  (6) The Tribunal shall consider an application under subsection (2) and, after giving the parties to the application an opportunity of presenting their cases, shall make an order:  (a) determining, or making provision for determining, the amount payable by the broadcaster to the owners of copyrights in published sound recordings in respect of the broadcasting, during the period to which the order applies, by the broadcaster of those recordings;  (b) specifying as the persons among whom that amount is to be divided such of the persons who were, or were represented by, parties to the application as the Tribunal is satisfied are the owners of copyrights in published sound recordings; and  (c) specifying as the respective shares in that amount of the persons among whom that amount is to be divided and as the times at which those shares are to be paid such shares and times as those persons agree or, in default of agreement, as the Tribunal thinks equitable.  (7) In so making an order in relation to a broadcaster, the Tribunal shall take into account all relevant matters, including the extent to which the broadcaster uses, for the purposes of broadcasting, records embodying sound recordings (other than recordings in relation to which section 105 applies) in which copyrights subsist, being copyrights owned by persons who are, or are represented by, parties to the application.  (8) The Tribunal must not make an order that would require a broadcaster who is:  (a) the holder of a licence allocated by the Australian Communications and Media Authority under the Broadcasting Services Act 1992 that authorises the holder to broadcast radio programs; or  (b) a person authorised by a class licence determined by that Authority under that Act to broadcast radio programs; to pay, in respect of the broadcasting of published sound recordings during the period covered by the order, an amount exceeding 1% of the amount determined by the Tribunal to be the gross earnings of the broadcaster during the period equal to the period covered by the order that ended on the last 30 June that occurred before the period covered by the order.  (9) If a broadcaster that is:  (a) the holder of a licence allocated by the Australian Communications and Media Authority under the Broadcasting Services Act 1992 that authorises the holder to broadcast radio programs; or  (b) a person authorised by a class licence determined by that Authority under that Act to broadcast radio programs; has, with the permission of that Authority, adopted an accounting period ending on a day other than 30 June, the reference in subsection (8) to 30 June is, in relation to that broadcaster, a reference to that other day.  (10) Subsection (8) does not apply to an order in relation to a broadcaster unless:  (a) the broadcaster establishes to the satisfaction of the Tribunal the amount of the gross earnings of the broadcaster during the period in respect of which those earnings are to be determined; and  (b) the broadcaster carried on the transmission of programmes by way of sound broadcasting throughout the whole of that period.  (11) Where an application is made to the Tribunal under subsection (2) in relation to the Australian Broadcasting Corporation, the Tribunal:  (a) shall make separate orders in respect of sound broadcasts by the Corporation of published sound recordings and in respect of television broadcasts by the Corporation of such recordings; and  (b) shall not make an order that would require the Corporation to pay, in respect of sound broadcasts of published sound recordings during the period in relation to which the order applies, an amount exceeding the sum of:  (i) in respect of each complete year included in that period the amount ascertained by multiplying one‑half of One cent by the number equal to the number of persons comprised in the estimated population of Australia as last set out in statistics published by the Commonwealth Statistician before the making of the order; and  (ii) in respect of each part of a year included in that period—the amount that bears to the amount ascertained in accordance with the last preceding subparagraph in relation to a complete year the same proportion as that part of a year bears to a complete year.  (12) A person who is not specified in an order in force under subsection (6) as one of the persons among whom the amount specified in, or determined in accordance with, the order is to be divided may, before the expiration of the period to which the order applies, apply to the Tribunal for an amendment of the order so as to specify him or her as one of those persons.  (13) The parties to an application under the last preceding subsection for an amendment of an order are:  (a) the person making the application;  (b) the broadcaster in relation to whom the order applies;  (c) the persons specified in the order as the persons among whom the amount specified in, or determined in accordance with, the order is to be divided; and  (d) such organizations or persons as apply to the Tribunal to be made parties to the application and, in accordance with subsection (5), are made parties to the application.  (14) The Tribunal shall consider an application under subsection (12) for an amendment of an order in force under subsection (6) (in this subsection referred to as the principal order) and, after giving the parties to the application an opportunity of presenting their cases, shall, if it is satisfied that the applicant is the owner of the copyright or copyrights in one or more published sound recordings, make an order amending the principal order so as to:  (a) specify the applicant as one of the persons among whom the amount specified in, or determined in accordance with, the principal order is to be divided; and  (b) specify as the share of the applicant in that amount and as the times at which that share is to be paid such share and times as the applicant and the other persons among whom that amount is to be divided agree or, in default of agreement, as the Tribunal thinks equitable and make any consequential alterations in respect of the shares of those other persons.  (15) An order of the Tribunal made under subsection (6) in relation to a broadcaster applies in relation to the period commencing on the date specified in the order and ending on 30 June next succeeding the date of making of the order.  (16) The date that may be so specified in an order of the Tribunal made under subsection (6) in relation to a broadcaster may be a date before the date of making of the order or before the date of making of the application but shall not be a date before the date of expiration of the period in relation to which the last preceding order (if any) of the Tribunal made under that subsection in relation to that broadcaster applied or before the date of commencement of this Act.  (17) An order of the Tribunal made under subsection (14) amending an order of the Tribunal made under subsection (6) applies in relation to the period commencing on the date of making of the amending order and ending on the date of expiration of the period in relation to which the order that is being amended applies.  (18) Where an order of the Tribunal is in force under this section, the broadcaster in relation to whom the order applies is liable to pay to each of the persons specified in the order as the persons among whom the amount specified in, or determined in accordance with, the order is to be divided the share so specified in relation to that person and is so liable to pay that share at the times so specified and that person may recover any amount that is not paid in accordance with the order in a court of competent jurisdiction from the broadcaster as a debt due to the person.  (19) For the purposes of this section, the gross earnings of a broadcaster in respect of a period are the gross earnings of the broadcaster during that period in respect of the broadcasting by the broadcaster of advertisements or other matter, including the gross earnings of the broadcaster during that period in respect of the provision by the broadcaster of, or otherwise in respect of, matter broadcast by the broadcaster.  (20) Where, in connexion with a transaction, any consideration is paid or given otherwise than in cash, the money value of that consideration shall, for the purposes of the last preceding subsection, be deemed to have been paid or given.  (21) Where the Tribunal is of the opinion that:  (a) an amount, or part of an amount, earned during any period by a person other than a broadcaster would, if the broadcaster and that person were the same person, form part of the gross earnings of the broadcaster in respect of that period for the purposes of this section; and  (b) a relationship exists between the broadcaster and the other person (whether by reason of any shareholding or of any agreement or arrangement, or for any other reason) of such a kind that the amount or the part of the amount, as the case may be, should, for the purposes of this section, be treated as part of the gross earnings of the broadcaster in respect of that period; the Tribunal may so treat the amount or the part of the amount, as the case may be.