THE AUSTRALIAN COMPETITION TRIBUNAL

 

 

Australasian Performing Right Association Ltd [2000] ACompT 2


 

 

 

Matter Nos 4 and 5 of 1998

 

RE APPLICATIONS BY AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LTD PURSUANT TO SS 101 AND 101A OF THE TRADE PRACTICES ACT 1974


JUSTICE von DOUSSA , DR B I ALDRICH & PROFESSOR R C DUNCAN

20 JULY 2000

ADELAIDE (heard in Sydney)

 

 


THE AUSTRALIAN COMPETITION TRIBUNAL

NOS 4 & 5 OF 1998

 

 

 

RE:

APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 14 JANUARY 1998 DENYING AUTHORISATION IN RELATION TO APPLICATION NOS A30186, A30187, A30188, A30190, A30191 AND A30193; AND OF THE GIVING OF NOTICE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION ON 14 JANAURY 1998 UNDER SUBSECTION 93(3) IN RELATION TO NOTIFICATION NO. N30751 (STANDARD ARRANGEMENTS FOR THE ACQUISITION AND LICENSING OF THE PERFORMING RIGHTS IN APRA’S MUSICAL REPERTOIRE)

 

 

 

 

BY:

AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED

 

 

 

 

 

Applicant

 

 

MEMBERS:

JUSTICE von DOUSSA, DR B I ALDRICH & PROFESSOR R C DUNCAN

 

DATE:

20 JULY 2000

 

PLACE:

ADELAIDE (heard in Sydney)

 

 

THE TRIBUNAL MAKES THE FOLLOWING DETERMINATION:

 

1.         Subject to the conditions set out in 2 below, the Tribunal hereby:

(a)        Grants authorisation to Australasian Performing Right Association Limited (APRA) in respect of applications:

A30186

A30187

A30188

A30190

A30191

A30193

to make or enter into and to give effect to the proposed input output and distribution arrangements outlined in those applications, subject to the amendments set out in Annexure “A” hereto;

(b)        Sets aside the notice given to APRA by the Australian Competition and Consumer Commission under section 93(3) of the Trade Practices Act 1974 (Cth), in relation to notification N30751.

2.         It is a condition of the authorisations granted in 1 that:

(a)        at the next Annual General Meeting of APRA, the Articles of Association of APRA be amended to include the amendments set out in Annexure “A” to this determination; and


(b)        APRA implements the alternative dispute resolution procedure described in Annexure “B”.


3.         The authorisation hereby granted shall have effect until 30 June 2004.


ANNEXURE “A”

Changes to APRA’s Articles of Association (and related documents) to be made in accordance with the determination of the Australian Competition Tribunal


1.         Insert new definitions in Article 3:


“Interested Persons” means, in respect of a work or works for the purpose of Article 17(h),

(a)        a Writer Member;

(b)        a Publisher Member; or

(c)        another person

who has assigned to the Association the Performing Right in respect of such work or works which is or are the subject of a notice provided to the Association pursuant to Article 17(h)(ii);


“Performance” in Article 17, means a performance in public, broadcast (including television broadcast), or communication to the public other than by means of public performance or broadcast but including by means of transmission to subscribers to a diffusion service, by any means and in any manner whatsoever;


2.         Insert a new Article 17(g):


17(g)    Subject to Article 17(h) any member may require the Association to grant to the member a non-exclusive licence to permit the member to license in Australia all or part of the Performing Right in respect of any particular work or works where the Performing Right has been assigned to the Association, or where an authority has been granted pending assignment under Article 17(f), by the member as the composer, author, publisher or proprietor of it.


3.         Insert a new Article 17(h):


17(h)    In this Article, “Television Broadcast” includes retransmission or simulcast of television broadcast material on-line.  It is a pre-condition of the grant of a licence pursuant to Article 17(g) that:


(i)         the purpose of the licence is to enable the member to grant a sub-licence of the Performing Right;


(ii)        the member provides the Association with a notice (in a form reasonably determined by the Board from time to time):


(a)        in the case of a performance other than by a Television Broadcast, not less than two months prior to the date of the first performance under the proposed sub-licence; and


(b)       in the case of a performance by a Television Broadcast, not less than one month prior to the date on which the proposed sub-licence takes effect;


(iii)        the notice referred to in Article 17(h)(ii):


(a)        specifies the title / s of the relevant work or works;


(b)       specifies the identity of all persons to whom the member intends to grant a sub-licence;


(c)        specifies


(i)         in the case of a performance other than by a Television Broadcast the date or dates on which the performances under the proposed sub-licence are to take place; and


(ii)        in the case of a performance by a Television Broadcast, the date on which the proposed sub-licence is to take effect, the period in respect of which the proposed sub-licence will operate, and any performance dates which are known to the member at the time of entering into the proposed sub-licence;


(d)       specifies the geographic location of the performance or if a performance other than by a Television Broadcast, the venue of the performance;


(e)        in the case of a performance by a Television Broadcast, specifies the broadcasting or on-line service and the program or content segment in respect of which the proposed sub-licence will be granted;


(f)        contains a signed consent to the proposed sub-licence and release and indemnity in a form reasonably required by the Board from time to time from all Interested Persons; and


(g)        is accompanied by


(i)         an undertaking to pay reasonable costs to the Association, in accordance with the Board’s predetermined and published schedule of costs (if any), prior to the date of the first performance or (in the case of performances by a Television Broadcast) the date on which the proposed sub-licence is to take effect; and


(ii)        an undertaking to pay to the Association such further reasonable costs which may be incurred by the Association in connection with and / or arising out of the granting of the licence back to the member;


(iv)       the sub-licence must be in writing and if practical, signed by all parties.


4.         Changes to Article 85:


85(f)     delete the final word “and”.


85(g)    delete “.” at the end of the sub paragraph, add “; and”.


Insert


85(h)    to determine the reasonable form of notices, other documents and reasonable costs under Article 17.

 

FORM

for

NOTICE UNDER ARTICLE 17(g) - REQUEST FOR LICENCE BACK


In this document:


“Performing Right” means the right to perform in public, broadcast, transmit, communicate or make available the musical and literary work, which rights have been assigned to APRA as a condition of membership;


“Performance” has a corresponding meaning;


“Television Broadcast” includes retransmission or simulcast of television broadcast material on-line; and


“Works” means the musical and literary works described in paragraph 1.


1.         Request for non exclusive licence back


[Name of Member (including other names by which member might be known) (Member)] hereby requests the Association to grant to me a non exclusive licence in the Performing Right in the following Works:


Title of Work

Composers / Lyricists

Publisher

Sub Publisher

(if relevant) or administering publisher

Performing Right Society

(other than APRA, if relevant)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


to the extent necessary to grant the sub-licence described in clause 2.  I note that the sub-licence must be in writing.


2.         Details of proposed sub-licence


2.1       Name of licensee:


2.2       If the sub-licence relates to a performance by Television Broadcast:


(a)        the date on which the sub-licence will take effect;


(b)        the period of the sub-licence;


(c)        the identifier by which each broadcast or on-line service is known;


(d)        the name of the program or content segment in which the performance will                     occur; and


(e)        any performance dates which are known at this time.


2.3       If the sub-licence relates to a performance other than by a Television Broadcast:


(a)        the date or dates of the performance; and


(b)        the location and venue of the performance.


3.         Consent of interested persons


I attach the written consent, release and indemnity from each writer, publisher and other person who has assigned any share of the Performing Right in the Work to APRA.


4.         Costs


I undertake to pay to the Association on receipt of a tax invoice:


(a)          the Association’s reasonable costs in accordance with the Board’s publisher schedule as at the date of this notice; and


(b)          such other reasonable costs which may be incurred by the Association in connection with and / or arising out of the granting of this licence back,


and note that the licence back will be ineffective if the payment referred to in (a) is not received prior to the date of the first performance under the sub-licence or (in the case of performances by a Television Broadcast) the date on which the sub-licence takes effect.


5.         Indemnity


I hereby indemnify the Association against liability for all damages, losses, costs and expenses (including legal costs on an indemnity basis and whether incurred by or awarded against the Association) incurred by the Association arising out of third party claims related to the grant of the non exclusive licence to me or the sub-licence by me, including, but not limited to any claims by persons having an interest in the performing right who have not consented to the grant of the sub-licence.



6.         Acknowledgments


I acknowledge that I am not entitled to receive any distribution from the Association for performances of the Works by the sub-licensee in relation to which there has been a licence back, whether the performances are in accordance with the terms of the sub-licence or not.


_____________________                                          ___________________

                        Signed                                                                          Dated



FORM

for

 

CONSENT TO SUB-LICENCE

 

(Article 17(g))


1.         [Name, description of interest in work eg, publisher, affiliated society, composer etc] hereby consent to the grant by the Association of a non exclusive licence in [Works] to [Member] for the purpose of the grant of a sub-licence by [Member] to [Licensee] for performances on


(a)        [date / s] or


(b)        period of sub-licence from date on which sub licence takes effect]


at [location].


2.         I acknowledge that I am not entitled to receive any distribution from the Association for performances of the Works by the Licensee in relation to which there has been a licence back, whether the performances are in accordance with the sub-licence or not.


3.         I hereby indemnify the Association against liability for all damages, losses, costs and expenses (including legal costs on an indemnity basis and whether incurred by or awarded against the Association) incurred by the Association arising out of third party claims related to the grant of the non exclusive licence to the Member or the sub-licence by the Member, including, but not limited to any claims by persons having an interest in the performing right who have not consented to the grant of the sub-licence.


_______________________                                                  ___________________________

            Signed                                                                                                  Dated



ANNEXURE “B”

 

Alternative dispute resolution procedure to be implemented by APRA in accordance with the determination of the Australian Competition Tribunal

 

ALTERNATIVE DISPUTE RESOLUTION AT APRA


From time to time, disputes arise between APRA and its licensees, or potential licensees.


The dispute might relate to the terms of the licence, whether a licence is required at all, or how much music is being played at the licensee’s premises.


These disputes can nearly always be referred to the Copyright Tribunal or to the Federal Court to be resolved.  APRA realises that the Copyright Tribunal and the Federal Court can be expensive and time consuming dispute resolution forums.


APRA has established a procedure to attempt to resolve disputes with licensees or potential licensees, which is cheaper and quicker than the Copyright Tribunal and the Federal Court.  The process is called Expert Determination.


If you have a dispute with APRA regarding a licence or a proposed licence, you can refer the dispute to the Expert Determination procedure.  The dispute will be determined quickly.  If a licensing officer at APRA suggests that a dispute be referred to Expert Determination, you should seriously consider agreeing to the suggestion.


One of the issues which may be determined by the expert is the date from which any APRA licence may apply.  The process is not intended to delay any obligation to obtain a licence.


If several licensees have similar substantive issues with APRA, APRA may suggest that the disputes be determined together.  If the expert has previously determined a substantive issue and a similar issue arises at a later date, APRA may argue that the dispute resolution process should not apply.


The procedure for Expert Determination is as follows:


1.         If during your negotiations with a licensing officer from APRA a dispute arises, either you or the licensing officer may suggest that the dispute be referred to Expert Determination.  This should only occur if it seems unlikely that the dispute can be resolved by negotiation.  If you are not already a licensee of APRA and you ask to have the dispute determined by an expert, APRA must agree.  If you already have an APRA licence, you may be required to have the dispute referred to Expert Determination, under the terms of your licence.


2.         Once you have agreed that the dispute should be referred to Expert Determination, APRA’s licensing officer will refer the matter to APRA’s ADR liaison officer.  The liaison officer will take a detailed note of the matters in dispute, and will contact you to make arrangements for the Expert Determination.


3.         Disputes will be determined by one of a panel of three independent experts.  All members of the panel are former judges who have been trained in various methods of alternative dispute resolution.


4.         On a date which is convenient to you, APRA and the independent expert will be appointed.  The dispute will be dealt with at a venue which is as close to your place of business as possible (usually, the capital city in your state).


5.         Before the date which has been set down for dealing with the dispute, you and APRA may submit any written statements or other documents which support your arguments relating to the dispute.  These should be forwarded to the ADR liaison officer.


6.         At the Expert Determination, you will be given an opportunity to present your arguments to the independent expert.  APRA will also be given an opportunity to present its arguments.  If both parties wish, they may have their solicitors present to assist them.  If you agree to have a representation body appear on your behalf, you may.


7.         The expert will then make a determination of the dispute.  If either you or APRA is dissatisfied with the determination, the dispute may be referred to the Copyright Tribunal or the Federal Court (whichever is the appropriate body).


8.         APRA will pay for the costs of the independent expert, including professional fees and travel expenses.  The cost of the venue for the Expert Determination must be shared equally between the parties.  You must pay your own costs associated with the determination.


If you would like any details about the process, please contact [Person to be nominated by APRA].


THE AUSTRALIAN COMPETITION TRIBUNAL

NOS 4 & 5 OF 1998

 

 

 

RE:

APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 14 JANUARY 1998 DENYING AUTHORISATION IN RELATION TO APPLICATION NOS A30186, A30187, A30188, A30190, A30191 AND A30193; AND OF THE GIVING OF NOTICE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION ON 14 JANAURY 1998 UNDER SUBSECTION 93(3) IN RELATION TO NOTIFICATION NO. N30751 (STANDARD ARRANGEMENTS FOR THE ACQUISITION AND LICENSING OF THE PERFORMING RIGHTS IN APRA’S MUSICAL REPERTOIRE)

 

 

BY:

AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED

 

Applicant

 

 

 

 

MEMBERS:

JUSTICE von DOUSSA, DR B I ALDRICH & PROFESSOR

R C DUNCAN

DATE:

20 JULY 2000

PLACE:

ADELAIDE (heard in Sydney)



REASONS FOR DETERMINATION

1                     On 16 June 1999, following a lengthy hearing, the Tribunal published its reasons for decision on two applications for review.  The first application was brought under s 101 of the Trade Practices Act 1974 (Cth) (the Act) to review the determination of the Australian Competition and Consumer Commission (ACCC) dated 14 January 1998 to refuse six out of eight applications for authorisation made by Australasian Performing Right Association Limited (APRA).  The second application was made under s 101A of the Act in respect of the determination made on the same date by the ACCC to give notice to APRA under s 93(3) of the Act.

2                     For the reasons then given, the Tribunal considered that if the input arrangements of APRA which required an exclusive assignment of performing right, subject only to Article 17(b) of the Memorandum of Association of APRA, were modified by the introduction of a non-exclusive licence back scheme, and that a simplified alternative dispute resolution process was introduced by APRA, the application for review under s 101 of the Act should be allowed and that authorisation should be granted for the six applications in respect of which authorisation had not been granted by the ACCC.  Further, on the application under s 101A of the Act, the Tribunal considered that if these changes were made the notice given to APRA by the ACCC should be set aside.  The proceedings were adjourned to enable APRA to formulate appropriate amendments to its Articles of Association, and to put forward an appropriate alternative dispute resolution procedure.

3                     The proceedings were relisted before the Tribunal on 16 June 2000 to consider proposals put forward by APRA on these topics, and matters of concern raised by the Federation of Commercial Television Stations (FACTS) and the ACCC about the amendments proposed to the Articles of Association.  FACTS and the ACCC made no submissions in respect of the proposed alternative dispute resolution process.

4                     At the conclusion of the hearing on 16 June 2000, APRA agreed to redraft aspects of the proposed amendments to the Articles of Association to address matters of concern canvassed by the parties before the Tribunal.  Directions were made setting times for APRA to redraft proposed changes to its Articles and related documentation, and for FACTS and the ACCC to file responses to the proposed changes identifying remaining points of contention, if any.  The directions have been complied with.  FACTS and ACCC have each indicated that they do not oppose the making of a determination by the Tribunal which will grant APRA the authorisation sought, subject to the amendment of its Articles of Association now proposed by APRA, and the implementation of the alternative dispute resolution process.

5                     The amendments proposed by APRA to its Articles of Association, and the alternative dispute resolution process, meet the requirements for authorisation identified by the Tribunal in its reasons for decision dated 16 June 1999, and the Tribunal now makes the determination anticipated by those reasons.  Full particulars of the proposed amendments to APRA’s
Articles of Association, and the alternative dispute resolution process appear in Annexures A and B respectively appended to the determination which accompanies these reasons.

 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Determination herein of the Tribunal.



Associate:


Dated:             



Counsel for APRA:

Mr A I Tonking



Solicitors for APRA:

Banki Haddock Fiora



Counsel for FACTS:

Mr M J Slattery QC & Ms T Meredith



Solicitor for FACTS:

Marx Lawyers



Counsel for the ACCC:

Mr P Jeffers



Date of Hearing:

16 June 2000



Date of Determination:

20 July 2000