Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia [2019] FCAFC 95 (06 June 2019) (Besanko, Middleton and Burley JJ) - 13wentworthselbornechambers
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Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia [2019] FCAFC 95 (06 June 2019) (Besanko, Middleton and Burley JJ)


Catchwords:


COPYRIGHT — application for judicial review of a decision of the Copyright Tribunal of Australia made on a reference under s 154(4) of the Copyright Act 1958 (Cth) — where the first applicant sought approval of a licence scheme for the subscription television industry for the use of copyright and sound recordings owned or controlled by persons and entities it represents — where the first applicant is a copyright collecting society

ADMINISTRATIVE LAW — whether the Tribunal asked itself the wrong question and failed to accord procedural fairness to the first applicant — where the Tribunal engaged in a process of judicial estimation to determine whether the proposed licence fee was reasonable or equitable in the circumstances

ADMINISTRATIVE LAW — whether the Tribunal failed to consider charges payable by the second respondent pursuant to an agreement under which it was granted a non-exclusive licence to broadcast or communicate certain musical works and lyrics — whether the Tribunal failed to take into account a mandatory relevant consideration — whether the Tribunal failed to accord procedural fairness to the first applicant by not dealing with a clearly articulated case — whether the Tribunal misconstrued “in the circumstances” in s 154(4) of the Act

ADMINISTRATIVE LAW — whether the Tribunal failed to consider charges payable by commercial television providers — whether the Tribunal failed to take into account a mandatory relevant consideration and thereby failed to accord procedural fairness to the first applicant — whether the Tribunal made findings for which there was no evidence, or which were irrational — whether the Tribunal erred in its approach to calculating a “substantial” increase in fees

ADMINISTRATIVE LAW — whether the Tribunal erred in determining that it had power to vary the proposed licence scheme to incorporate rights which had not been licensed to the first applicant — consideration of the power conferred on the Tribunal by s 154(4) of the Act

COPYRIGHT — consideration of the history, context and purpose of Part VI of the Act — consideration of the definitions of “licence”, “licensor” and “licence scheme” in s 136(1) of the Act — consideration of the nature of a “licence scheme” under s 136(1) of the Act

ADMINISTRATIVE LAW — whether it is appropriate to set aside the Tribunal’s decision and refer the entire matter back to the Tribunal for reconsideration — where the Court has the power to set aside part of a decision pursuant to s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) — where the Tribunal treated the decision as to price separately from that as to power