Phonographic Performance Company of Australia Limited v Commonwealth of Australia [2012] HCA 8

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

PHONOGRAPHIC PERFORMANCE COMPANY OF

AUSTRALIA LIMITED & ORS PLAINTIFFS

AND

COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS

Phonographic Performance Company of Australia Limited v Commonwealth of Australia

[2012] HCA 8

28 March 2012

S23/2010

ORDER

Order that the questions stated in the Special Case filed on 3 February 2011 be answered as follows:

Question 1: Are some or all of the provisions in ss 109 and 152 of the Copyright Act 1968 (Cth) beyond the legislative competence of Parliament by reason of s 51(xxxi) of the Constitution?

Answer: The provisions in s 152 of the Copyright Act 1968 (Cth) which were alleged by the plaintiffs to be invalid are not invalid and, therefore, s 109 is not invalid.

Question 2: If so, should some or all of these provisions be read down or severed and, if so, how?

Answer: This question does not arise.

Question 3: What order should be made in relation to the costs of the Special Case?

Answer: The plaintiffs should pay the defendants' costs of the Special Case.

Representation

R Cobden SC and J K Kirk with A Rao for the plaintiffs (instructed by Gilbert + Tobin Lawyers)

S J Gageler SC, Solicitor-General of the Commonwealth and S B Lloyd SC with K Richardson for the first defendant (instructed by Australian Government Solicitor)

J C Sheahan SC with C A Moore for the second defendant (instructed by ABC Legal Services)

A J Meagher SC with G R Kennett SC for the third defendant (instructed by Minter Ellison Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Phonographic Performance Company of Australia Limited v Commonwealth of Australia

Intellectual property – Copyright – Sound recordings – Source of rights – Transitional provisions – Whether after commencement of Copyright Act 1968 (Cth), the Copyright Act 1911 (Imp) remained source of subsisting copyright in pre-1969 sound recordings.