|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Last Updated: 3 June 2010
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S23 of 2010
B e t w e e n -
PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED ACN 000 680 704
First Plaintiff
EMI MUSIC AUSTRALIA PTY LIMITED ACN 000 070 235
Second Plaintiff
SONY MUSIC ENTERTAINMENT AUSTRALIA PTY LIMITED ACN 107 133 184
Third Plaintiff
UNIVERSAL MUSIC AUSTRALIA PTY LIMITED ACN 000 158 592
Fourth Plaintiff
WARNER MUSIC AUSTRALIA PTY LIMITED ACN 000 815 565
Fifth Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
Directions hearing
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 25 MARCH 2010, AT 9.39 AM
Copyright in the High Court of Australia
__________________
MR A. ROBERTSON, SC: May it please the Court, I appear with my learned friends, MR S.J. FREE and MS A. RAO, for the plaintiffs. (instructed by Gilbert + Tobin Lawyers)
MR S.J. GAGELER, SC (Solicitor-General for the Commonwealth of Australia): If the Court pleases, I appear with MS K.M. RICHARDSON, for the defendant. (instructed by Australian Government Solicitor)
MR C.A. MOORE: May it please the Court, I appear for the Australian Broadcasting Corporation who is not a current party to these proceedings but is probably a necessary party. The ABC is not joined in the next iteration, which I understand is coming, of the summons. Then we may apply to be joined as a party.
MR M.A. DARKE: If your Honour pleases, I appear for two commercial radio broadcasters, 2day FM Sydney Pty Limited and Nova 96.9 Pty Limited, and for Commercial Radio Australia Pty Limited, which is an industry representative body. We too are not presently parties. We would not oppose being joined if the plaintiffs were minded to take that course. If we are not joined, then we would, in due course, seek that we participate on one basis or another in the proceedings.
HIS HONOUR: Thank you. Yes, Mr Robertson.
MR ROBERTSON: Thank you, your Honour. Your Honour will have seen the writ of summons and statement of claim filed in February.
HIS HONOUR: Yes.
MR ROBERTSON: There was a summons for directions and an amended summons for directions which may not be in the tidiest form.
HIS HONOUR: The amended summons was filed on 24 March.
MR ROBERTSON: That is right, yesterday, your Honour, yes. The effect of what we are trying to achieve is to permit the plaintiffs further to consider the points raised by the Commonwealth, both in their submissions on the summons and in their preceding letter with a view to having the question of remitter or otherwise - - -
HIS HONOUR: I am not sure we took the Solicitor’s appearance actually.
MR ROBERTSON: I think we did, your Honour.
MR GAGELER: I did it quietly, your Honour, but I did it.
HIS HONOUR: Go on.
MR ROBERTSON: With a view to bringing the matter back before the Court.
HIS HONOUR: Yes, all right. Can you just explain, so I start to understand it – do you have the writ of summons?
MR ROBERTSON: Yes.
HIS HONOUR: It has an appended statement of claim, I guess.
MR ROBERTSON: Yes.
HIS HONOUR: Schedule 1 at the back there, the last couple of pages, can we just look at them for a minute. Am I right in thinking they are sound recordings made whilst the 1911 Act was in force, before the commencement of the 1968 Act which started on 1 May 1969.
MR ROBERTSON: That is right.
HIS HONOUR: Who is said to be the maker at the relevant time back in the 1960s or does that not presently appear?
MR ROBERTSON: It is not presently specifically stated, but, broadly speaking, the plaintiffs, not in respect of obviously each sound recording, but the recordings can be attributed to the respective plaintiffs.
HIS HONOUR: Yes, may be attributed now, but attributed in the 1960s, that is the question.
MR ROBERTSON: Yes, at the time as well, I am instructed, or largely so. In other words, certainly in relation to EMI Music, for example, they were the relevant copyright holders as at the date your Honour mentioned, 1 May. Your Honour would have seen and has gathered that the case concerns pre-1968 Act works.
HIS HONOUR: Yes, that is right. The other thing I was puzzling about, is your complaint to some or perhaps extreme degree dependent on the transitional provisions in the 1968 Act which transmuted what were rights under the 1911 Act into rights under the 1968 Act?
MR ROBERTSON: That is a crucial point. That is the point that the plaintiffs seek to make, that what they had before the 1968 Act came into force was free of the statutory limitations, if I can put it that way, in 109 and 152 of the 1968 Act of which they - - -
HIS HONOUR: Do you have the 1968 Act there?
MR ROBERTSON: Yes, your Honour.
HIS HONOUR: So the transitional provisions start at section 204.
MR ROBERTSON: Your Honour is quite right, if I may say so, to say that there is a point about how the transitional provisions apply to the pre-existing works.
HIS HONOUR: I mean, is it your complaint that section 207 worked an acquisition of property on other than just terms?
MR ROBERTSON: Read with the provisions to which I earlier referred, not of itself but read with the balance of the - - -
HIS HONOUR: Well, 220, for example, made specific provision for sound recordings and so forth.
MR ROBERTSON: Yes. So that the new Act, if I can call it that, applied to the old property and subjected that property to the statutory limitations in 109 and 152 and then the cap was imposed not by reference to the value of the property, but by reference to the profitability or the revenue of the commercial broadcasters, differently, of course, for the ABC.
HIS HONOUR: Looking at the schedule again, am I right in thinking that 50 years is the period of duration, whether it is the old Act or the new Act?
MR ROBERTSON: There is some arithmetic involved in that, your Honour, but why the period is as it is is that one looks at the copyright that would have still subsisted as at 2004, which was when the 50-year period was extended to 70 years. So some of the rights had dropped away by then. So, if your Honour looks at paragraph 27 of the pleading, why the date is 1 January 1954 is because - - -
HIS HONOUR: Yes. That is 50 years before 2004.
MR ROBERTSON: Exactly, yes. Then the other date, as your Honour has already referred to, is 1 May 1969.
HIS HONOUR: The Commonwealth says you have not isolated an acquirer.
MR ROBERTSON: Well, they do say that amongst other things. On the way, as we see it pleaded, I am not here to argue whether it could be more clearly pleaded, but the broadcasters are the acquirers by virtue of 109 and 152. The right that we are talking about plainly is one of the rights referred to in 85, that is the exclusive right to communicate the recording to the public. As your Honour will recall, 109 then operates on that to say that the copyright is not infringed by the making of a broadcast subject to the - - -
HIS HONOUR: Another way of looking at it is that you only got the benefit of 89 if you got the burden of the other sections.
MR ROBERTSON: That is certainly a proposition for a later day, as we would submit to your Honour.
HIS HONOUR: Do you then say that if that is right you lost what you had under the 1911 Act.
MR ROBERTSON: Yes. So what the plaintiffs had under the 1911 Act existed and then for the first time the 1 May 1969 was subject to the extraction from those rights of the right to broadcast subject to payments on a limited basis.
HIS HONOUR: Now, this may be a premature concern, I suspect that the Commonwealth also says, well, there is going to be some evidentiary questions of royalty rates, what would be royalty rates were it but for this regime.
MR ROBERTSON: Yes. That is something we will have to take on board. Primarily, what the plaintiffs are asserting is that one can characterise the law by reference to the sections that your Honour has referred to and that I have referred to as a law with respect to the acquisition of property other than on just terms. Now, plainly there would be another way of doing it which would be long and tedious, which would be to take a matter through the Copyright Tribunal and look at a specific bunch of recordings with respect to a particular broadcaster, but we say it is permissible to characterise the legislation in light of the characterisation question as posed in Georgiadis and Peverill and those cases to get to that result.
We will certainly think hard about accommodating the points that the Commonwealth has raised and if, on the next occasion, your Honour is persuaded that that is the only or preferable way of dealing with the matter, that is if the case can only run on a recording-by-recording basis or a group of recordings basis, then that would raise, no doubt, detailed and complex factual matters which may well not be able to be accommodated in this Court. But our primary position is that, as we have articulated in the written submissions, those detailed facts are not necessary for the resolution of the matter the plaintiffs wish to raise.
HIS HONOUR: Another possibility would be a remitter, I suppose, to deal with disputed evidence.
MR ROBERTSON: Yes. There are three things, in a sense. One is whether we can accommodate the concerns of the Commonwealth in a pleading; secondly, whether that approaches the Commonwealth’s concern sufficiently so that we can go to the next stage of a draft special case that the Commonwealth can consider; and then the third possibility is that none of that is possible in this Court and there needs to be a detailed factual exercise which is not a course that we would readily embrace.
HIS HONOUR: All right. I will ask the Solicitor. Do you have any opposition to the orders now sought on the amended summons?
MR GAGELER: We do not have any opposition. We have a suggestion for improvement. What we had suggested in our written submissions was that the plaintiffs come back with an amended summons for directions when they could annex to that a proposed pleading adding any new parties they saw as appropriate. The current order sought in the amended summons for
directions that is before your Honour is simply that they file an amended substantive summons and statement of claim. That would not seem to deal with the parties’ problem that we have raised.
HIS HONOUR: I see. Yes, all right. Looking at your submissions then, paragraph 8 on page 4, 8.1 and 8.3 would be the appropriate order.
MR GAGELER: Yes, your Honour.
HIS HONOUR: You wish to consider, do you not, Mr Robertson, as to which of the additional interested persons should be joined?
MR ROBERTSON: Yes, because it would depend on the form of relief that was sought. If the form of relief stays the same, then what my learned friend, Mr Darke, said as to the participation of the broadcasters might take one form, say, intervention. On the other hand, if after looking at it we thought that a more detailed approach was necessary, then it may well be that those broadcasters and the ABC, Mr Moore’s client, become necessary parties.
HIS HONOUR: How long do you need to replead?
MR ROBERTSON: The date that we had in mind, your Honour, and which I think I discussed with Mr Gageler, was 21 April with a view to bringing the matter back, if convenient to your Honour and the parties, the following week, if your Honour was in Sydney, on or about Thursday, 29 April or Friday, 30 April.
HIS HONOUR: Yes, Thursday the 29th, is that convenient? Is that a problem, Mr Solicitor?
MR GAGELER: Just on that day, your Honour.
MR ROBERTSON: Is the Wednesday convenient to your Honour?
HIS HONOUR: The 28th?
MR ROBERTSON: Wednesday, 28 April.
HIS HONOUR: Is that convenient?
MR GAGELER: Yes, your Honour.
HIS HONOUR: On the amended summons filed 24 March 2010 the Court makes the following orders:
Do we need to say that that will have appended the pleading, or is it sufficient you both understand that?
MR ROBERTSON: I think so, yes, your Honour.
HIS HONOUR:
MR ROBERTSON: We will, of course, provide that document to - - -
HIS HONOUR: Yes. I do not have to make an order about that.
MR ROBERTSON: No, you do not, your Honour.
HIS HONOUR:
Is there anything else?
MR ROBERTSON: Not from my part, thank you, your Honour.
HIS HONOUR: Thank you. I will now adjourn.
AT 9.57 AM THE MATTER WAS ADJOURNED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2010/77.html