Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia [2019] FCAFC 95

FEDERAL COURT OF AUSTRALIA

Phonographic Performance Company of Australia Limited v Copyright Tribunal of Australia [2019] FCAFC 95 Appeal from: Phonographic Performance Company of Australia Limited under s 154(1) of the Copyright Act 1968 (Cth) [2016] ACopyT 3 Phonographic Performance Company of Australia Limited under s 154(1) of the Copyright Act 1968 (Cth) (No 2) [2017] ACopyT 1 Phonographic Performance Company of Australia Limited under s 154(1) of the Copyright Act 1968 (Cth) (No 3) [2017] ACopyT 2

File number: NSD 945 of 2016

Judges: BESANKO, MIDDLETON AND BURLEY JJ

Date of judgment: 6 June 2019

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