Australasian Performing Right Association Ltd v Telstra Corporation Ltd [1995] FCA 643

CATCHWORDS COPYRIGHT - playing of music "on hold" over the telephone - whether Telecom infringes copyright in works used to provide music on hold - situations identified including calls to a Telecom office playing music on hold, to a customer who plays music on hold, and to a customer on whose behalf Telecom plays music on hold, whether or not the call utilizes the mobile telephone network, and whether the music is recorded music or broadcast music received by a radio set and then transmitted over the telephone - right to broadcast a work - right to cause a work to be transmitted to subscribers to a diffusion service - construction of s. 26 of the Copyright Act 1968 - whether music on hold is transmitted "to subscribers to a diffusion service" - whether Telecom, when transmitting music on hold sourced in a sound broadcast has the benefit of s. 199(4) - whether, where mobile telephones are used, there is a "broadcast" within s. 31(1)(a)(iv), i.e. a transmission by wireless telegraphy to the public within s. 10 - meaning of "to the public" - whether "the copyright owner's public" is referred to - legislative history and its effect. Copyright Act 1968, ss. 10, 26, 31(1)(a) and 199(4) Telecommunications Act 1991, ss. 5, 253 et seq. Performing Right Society Ltd v. Marlin Communal Aerials Ltd [1977] FSR 51 Australasian Performing Right Association Limited v. Telstra Corporation Limited (1993) 46 FCR 131 Regina v. Effik [1995] 1 AC 309 Australasian Performing Right Association Limited v. Commonwealth Bank of Australia (1992) 40 FCR 59 Jennings v. Stephens [1936] 1 Ch 469 Ernest Turner Electrical Instruments, Limited v. Performing Right Society, Limited [1943] 1 Ch 167 Australasian Performing Right Association Limited v. Canterbury-Bankstown League Club Limited (1964) 81 WN (Pt 1) (NSW) 300; (1964-5) NSWR 138 The Performing Right Society Limited v. Rangers F.C. Supporters Club [1975] RPC 626 Rank Film Production Ltd v. Colin S. Dodds (trading as Town and Country Motel) (1983) 2 NSWLR 553 Charter v. Race Relations Board [1973] AC 868 Chappell & Co Ltd v. Associated Radio Co of Australia Ltd [1925] VLR 350 Performing Right Society Ltd v. Harlequin Record Shops Ltd (1979) 1 WLR 851 Mellor v. Australian Broadcasting Commission [1940] AC 491 Duck v. Bates (1884) 13 QBD 843 Harms (Incorporated) Limited v Martans Club Limited [1927] 1 Ch 526 Performing Right Society Ltd v Hawthorns Hotel (Bournemouth) Ltd [1933] Ch 855 AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED v. TELSTRA CORPORATION LIMITED NG 951 of 1993 CORAM: Black C.J., Sheppard and Burchett JJ. PLACE OF HEARING: Sydney DATE: 23 August 1995