Australasian Performing Right Association v Fitness Industry Confederation [1995] ACopyT 3

Australasian Performing Right Association v Fitness Industry Confederation & Others NO. CT 1 of 1993 CATCHWORDS COPYRIGHT - reference to Copyright Tribunal under s.154 of Copyright Act 1968 - applicant proposing to bring a licence scheme into operation - licence scheme relating to performance of musical works in the course of fitness, health and/or aerobic classes - application undefended - whether amount agreed upon by parties reasonable in the circumstances. Copyright Act 1968, ss. 154, 157. TRIBUNAL: Sheppard P, Ms M. Barron, Dr J. Scutt PLACE: Sydney DATE: 15 March 1995 COMMONWEALTH OF AUSTRALIA COPYRIGHT ACT 1968 IN THE COPYRIGHT TRIBUNAL NO. CT 1 of 1993 Reference by: Australasian Performing Right Association Respondents: Fitness Industry Confederation of Australia Victorian Fitness Industry Association Registered Clubs Association of New South Wales YMCA Quality Health and Fitness Centres

MINUTES OF ORDER TRIBUNAL: Sheppard P Ms M. Barron (Member) Dr J. Scutt (Member) DATE: 15 March 1995 PLACE: Sydney The Tribunal orders that, pursuant to subsec. 154(4) of the Copyright Act 1968, the licence scheme, a copy of which has been initialled and dated by the President and annexed to this Order, be confirmed.

COMMONWEALTH OF AUSTRALIA COPYRIGHT ACT 1968 IN THE COPYRIGHT TRIBUNAL NO. CT 1 of 1993 Reference by: Australasian Performing Right Association Respondents: Fitness Industry Confederation of Australia Victorian Fitness Industry Association Registered Clubs Association of New South Wales YMCA Quality Health and Fitness Centres TRIBUNAL: Sheppard P Ms M. Barron (Member) Dr J. Scutt (Member) DATE: 15 March 1995 PLACE: Sydney

REASONS FOR DECISION SHEPPARD P AND MS BARRON: This is an application made by APRA pursuant to s.154 of the Copyright Act 1968. So far as it is relevant, the section provides that, where a licensor proposes to bring a licence scheme into operation he or she may refer the scheme to the Tribunal. The parties to a reference under the section are the licensor referring the scheme and such organisations and persons as apply to the Tribunal to be made parties to the reference and are made parties in accordance with subsec. 154(3). The licence scheme which APRA wishes to bring into operation is a licence scheme relating to the performance of musical works within APRA's repertoire in the course of fitness, health and/or aerobic classes for the purpose of accompanying physical exercise. It is unnecessary to refer to the detail of the scheme. It is enough to say that the licence fee for what is described as the first licence period is to be 50c per aerobic class and 25c per circuit class. For the second licence period the fees are 70c and 35c respectively. The terms "First Licence Period" and "Second Licence Period" are defined respectively in Clause 6 of the licence as the period of twelve months from the commencement date of the licence and the successive annual periods of the licence thereafter. Clause 6 provides that, subject to the terms and conditions of the licence agreement, the licence shall be for a period of twelve calendar months from the commencement date and shall thereafter continue for successive annual periods until determined by either party by the giving to the other of at least one month's notice in writing. The amounts of the licence fee are indexed in accordance with the Sydney All Groups Consumer Prices Index September quarter. The application made to the Tribunal was widely advertised and was also notified to interests which it was thought might have an interest in its outcome. As a consequence, there were a number of appearances. Two of the principal of these were by the Registered Clubs Association and the Fitness Industry Confederation of Australia. Each of those organisations originally opposed the application but, after negotiations, withdrew their opposition. The matter was listed for hearing on 3 March last. We heard short submissions from each of the parties and also considered correspondence received from other interests indicating that there was no opposition to the application. However, there was uncertainty concerning the Victorian Fitness Association. For that reason the matter was adjourned until today so that the position could be clarified. It is now clear that the Victorian Fitness Association makes no opposition to the application. We have read the evidence filed in the matter and we have had the benefit of an inspection of an aerobic class making use of music within the APRA repertoire at the New South Wales Leagues Club. We are satisfied, on the material before us, that the licence scheme is one which ought to be confirmed. In reaching our conclusion we have been alert to the fact that we have not reached our conclusion after a contested hearing. In this respect this case is similar to Reference by Australasian Performing Right Association Limited under s.154 of the Copyright Act 1968 (1992) 25 IPR 257. There the Tribunal said (at 268) that because the Tribunal had had to conduct its review of the material in a reference which had become uncontested, it had not had the benefit of a keen contest between two opposing parties which was likely to be productive of a much closer consideration of a problem such as that which confronted the Tribunal. One of the concerns that the Tribunal has is that its confirmation of the licence scheme here will tend to make it something of a common rule in this section of the industry. It will not in fact be a common rule because no person will be bound by the licence agreement unless he or she agrees to sign it. If persons consider the terms of the licence agreement unreasonable in the particular circumstances of their cases, it is always open to them to approach the Tribunal pursuant to s.157 of the Act. Subsection 157(2) thereof provides that a person who claims, in a case to which a licence scheme applies, that he or she requires a licence but that the grant of a licence in accordance with the scheme would, in that case, be subject to the payment of charges, or to conditions, that are not reasonable in the circumstances of the case, may apply to the Tribunal under the section. The Tribunal's jurisdiction to make an appropriate order in such a case is provided for in subsec. 157(6). In the result, we would propose that the order which the Tribunal make be an order that, pursuant to subsec. 154(4) of the Copyright Act 1968, the Tribunal confirms the licence scheme initialled and dated by the President and placed with the papers. DR SCUTT: I agree generally with the reasons of the President, Justice Sheppard and Member Maureen Barron. In the course of the hearing, reference was made to the need to foster good health in the community and the positive aspects of aerobic dancing and associated gymnastic activities in this regard. The importance of promoting good health and well being as a general proposition is undeniable. At the same time, the role of the Tribunal is to ensure that (in this case) composers of music receive a fair and reasonable return for their work. This principle, in the context of possibly competing public purposes, has been clearly stated in Copyright Agency Ltd v Department of Education (NSW) (1985) 59 ALR 172, 200 and Reference by Australasian Performing Right Association Ltd; Re Australian Broadcasting Corporation (1985) 5 IPR 449, 480-1. To paraphrase Justice Sheppard in the Department of Education (NSW) case, it is not the role of composers to subsidise health and fitness programs. Where a public purpose is seen in the maintenance of such programs, that is a matter for governments. I certify that this and the 5 preceding pages are a true copy of the reasons for decision herein of the members of the Copyright Tribunal. Associate to President Dated: