Reference by APRA AMCOS (Summonses) [2025] ACopyT 1

COPYRIGHT TRIBUNAL OF AUSTRALIA

Reference by APRA AMCOS (Summonses) [2025] ACopyT 1 File number: CT 1 of 2021

The Tribunal: PERRAM J (PRESIDENT)

Date of decision: 17 January 2025

Catchwords: PRACTICE AND PROCEDURE – applications to issue summonses – where summonses objected to

Legislation: Copyright Act 1968 (Cth) s 167(3)

Number of paragraphs: 5

Date of last submissions: 20 December 2024

Counsel for the Applicants: Mr M Hall SC with Ms R De Stoop and Ms M Evetts

Solicitor for the Applicants: Banki Haddock Fiora

Solicitor for Netflix, Inc: Simpsons Solicitors

COMMONWEALTH OF AUSTRALIA

COPYRIGHT ACT 1968 CT 1 of 2021 IN THE COPYRIGHT TRIBUNAL REFERENCE BY: AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED ABN 42 000 016 099

AUSTRALASIAN MECHANICAL COPYRIGHT OWNERS' SOCIETY LIMITED ABN 78 001 678 851 Applicants

TRIBUNAL: PERRAM J (PRESIDENT) DATE OF ORDER: 17 JANUARY 2025

THE TRIBUNAL ORDERS THAT:

1. APRA AMCOS and Netflix, Inc provide to the Associate to the President by 5 pm on 20 January 2025 a final form of the summonses each seeks.

REASONS FOR DETERMINATION

PERRAM J (PRESIDENT): 1 The first question is whether a summons in the form provided to my chambers should be issued to Netflix (at the request of APRA AMCOS) under s 167(3) of the Copyright Act 1968 (Cth). Netflix consents to paragraph 1(c) and APRA AMCOS does not press paragraph 1(e). Paragraphs 2 and 3 are machinery paragraphs. The disputed paragraphs are therefore paragraphs 1(a), (b) and (d). I accept that paragraph 1(a) seeks relevant material. Netflix asserts in the proceeding that the rates paid by SVOD providers in the United States are relevant to the pricing exercise in this case. Since Netflix is a subscription video on demand ('SVOD') provider in the United States I do not see that it can contend that the summons seeks material which is irrelevant. The fact that the material is confidential is an issue disconnected from its relevance. The parties may formulate an appropriate confidentiality regime. I am likewise unpersuaded that this paragraph imposes an undue burden. Netflix accepts that paragraph 1(b) is relevant but contends that it should be allowed to redact certain figures in order to head off third party claims for confidentiality. The regime in place adequately deals with confidentiality and the position of third parties. I see no reason not to let that regime take its course. I am unpersuaded that paragraph 1(d) seeks material that is not relevant. There is no evidence that it would be burdensome. The paragraph will be permitted. 2 The second question is whether a summons in the form provided to my chambers should be issued to APRA AMCOS (at the request of Netflix). The final form of the summons was marked up with red deletions and blue additions. The parties' submissions dealt with disputes about paragraphs 4, 5, 6, 7 and 8. Submissions were made about the additions and deletions made to paragraphs 4, 5 and 6. In the final form of the summons, paragraph 7 had been deleted and new paragraphs 5A, 5B, 8A and 8B added. Netflix made submissions about paragraphs 5A, 5B, 8A and 8B. 3 There is no dispute about paragraphs 1 to 3. Paragraph 4 is also agreed if it is limited (as it now is) to board resolutions. Following APRA AMCOS's submissions about paragraph 5 (which raised the spectre of a great burden in responding to the paragraph), Netflix narrowed the paragraph so that it only sought materials of the kind designated by subparagraphs (a)-(c) that were before the Honourable Dr Bennett AC SC in the arbitration between APRA and FreeTV. I am satisfied that the paragraph seeks material which is relevant and that, so confined, it is not burdensome. After receipt of APRA AMCOS's submissions, Netflix narrowed the paragraph to matters considered by Mr Mallett or the persons referred to by him at paragraph 19(d) of his statement. I am satisfied that the material is relevant and that production would not be burdensome. There were minor amendments to subparagraphs (b)-(c) which I also accept as appropriate. Netflix then submitted that new paragraphs 5A and 5B should also be permitted. I do not know what APRA AMCOS's position on that is but I am satisfied that what is sought is relevant and not burdensome. 4 Paragraph 7 is not pressed. I accept that what is sought by paragraph 8 is relevant however I am also satisfied that responding to it would be burdensome at this stage and therefore it will not be permitted. Netflix formulated alternative paragraphs 8A and 8B to which APRA AMCOS would consent if that conclusion was reached. Paragraphs 8A and 8B will be permitted. 5 The form of the draft summons to Netflix is returnable before the Tribunal on 24 January 2025. On the other hand, the summons to APRA AMCOS seeks production to Netflix. I do not mind which course is taken but they should be the same. No party has raised an issue about the date of 24 January 2025. The parties should provide my chambers with the final form of the summonses for issue as soon as possible. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Determination of the Tribunal constituted by the Honourable Justice Perram (President).