Phonographic Performance Co of Australia Ltd v Federation of Australian Commercial Television Stations [1998] HCA 39

High Court of Australia Gaudron, McHugh, Gummow, Kirby and Hayne JJ Phonographic Performance Co of Australia Ltd v Federation of Australian Commercial Television Stations (S95/1997) [1998] HCA 39

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia and in lieu thereof order that the questions referred to that Court by Sheppard J be answered as follows:

Q 1 In the circumstances described in pars 7-16 inclusive:

(a) did the doing of the act described in par 14 constitute the doing, with respect to a sound recording, of the act set out in s 85(1)(c) of the Act? or

(b) in the alternative, did it constitute the broadcast of a published sound recording for the purposes of s 152(2) of the Act?

A 1

(a) Yes.

(b) Unnecessary to answer.

Q 2 In the circumstances described in pars 17-26 inclusive:

(a) did the doing of the act described in par 24 constitute the doing, with respect to a sound recording, of the act set out in s 85(1)(c) of the Act? or

(b) in the alternative, did it constitute the broadcast of a published sound recording for the purposes of s 152(2) of the Act?

A 2

(a) Yes.

(b) Unnecessary to answer.

3. The respondent pay the appellants' costs in this Court and in the Federal Court.

Cur adv vult

The following written judgments were delivered:—

20 May 1998 Gaudron, Gummow and Hayne JJ.

1. The appellants are record companies which own copyright under the Copyright Act 1968 Cth (the Act) in various sound recordings and the respondent represents parties who are commercial television licensees under the provisions of the Broadcasting Services Act 1992 Cth. The Full Court of the Federal Court (Wilcox and Sundberg JJ, Lockhart J dissenting) held [1] that the broadcast by a commercial television station of a cinematograph film, the sound-track of which embodied a sound recording, did not constitute a broadcast of the sound recording for the purposes of the Act and thus did not infringe copyright in such a sound recording.