Phonographic Performance Company of Australia Limited (ACN 000 680 704) under section 154(1) of the Copyright Act 1968 (Cth) [2007] ACopyT 2

COPYRIGHT TRIBUNAL OF AUSTRALIA

Phonographic Performance Company of Australia Limited (ACN 000 680 704) under section 154(1) of the Copyright Act 1968 (Cth) [2007] ACopyT 2

REFERENCE BY: PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED (ACN 000 680 704) UNDER SECTION 154(1) OF THE COPYRIGHT ACT 1968 (CTH) CT2 OF 2004

THE TRIBUNAL: EMMETT J (PRESIDENT), PROFESSOR DENNIS PEARCE (MEMBER), DR RHONDA SMITH (MEMBER) 15 NOVEMBER 2007 SYDNEY COMMONWEALTH OF AUSTRALIA Copyright Act 1968 IN THE COPYRIGHT TRIBUNAL CT2 OF 2004

REFERENCE BY:

PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED UNDER SECTION 154(1) OF THE COPYRIGHT ACT 1968

THE TRIBUNAL: EMMETT J (PRESIDENT)

PROFESSOR DENNIS PEARCE (MEMBER)

DR RHONDA SMITH (MEMBER)

DATE OF ORDER: 15 NOVEMBER 2007

WHERE MADE: SYDNEY

FURTHER REASONS FOR DETERMINATION 1 On 10 July 2007, the Tribunal published its reasons for concluding that a scheme proposed by the Society would be confirmed subject to the adjustment of the licence fee proposed and the amendment of certain definitions. The Society was directed to bring in short minutes to give effect to the Tribunal's conclusions. 2 The Society brought in short minutes, which the Society contended gave effect to the Tribunal's conclusions. However, the Nightclub Respondents took issue with the form of scheme identified in the Society's short minutes. The dispute concerned the extent to which there should be a phasing in of the licence fees payable under the proposed scheme. 3 In its reasons, the Tribunal observed (at [10]) that, where approval of a scheme would lead to a substantial increase in fees, the increases could be phased in over a period of years rather than being introduced immediately. The Tribunal also observed that, in the present case, the Society proposed that there be a phasing in of the increase claimed by it. The Tribunal also observed (at [201]) that the object of the Tribunal, in approving the proposed scheme, was to fix upon a licence fee that could be regarded, as nearly as it is possible to estimate, as the fair market price for the privilege of playing recorded music in respect of which the Society is able to grant a licence. The fact that the market rate may be substantially higher than has hitherto been charged by the Society is no reason why the Society should not now charge that rate. 4 The Tribunal noted that, having regard to the significance of the increase proposed by the Society, the Society was prepared to phase in the increase proposed by it over a period of five years. The rates proposed in the scheme put forward on behalf of the Society were as follows: TARIFF CATEGORY DANCE USE RATE E 1 Nightclubs Year 1 Year 2 Year 3 Year 4 Year 5