Copyright Tribunal favours Commercial Radio in streaming case | radioinfo

Copyright Tribunal favours Commercial Radio in streaming case

Monday 02 May, 2016
Image: Shutterstock

For several years now, the commercial radio industry with its peak body Commercial Radio Australia (CRA) has been battling the Phonographic Performance Company of Australia (PPCA) over streaming rights.

The PPCA wanted to charge radio a significantly higher fee for playing recorded music streamed on the internet than what stations are currently paying for the same program broadcast on AM/FM or DAB+.

CRA argued that this amounted to double dipping because the potential marketable audience for that program remained virtually the same, regardless of the platform through which that audience chose to listen.

Despite that, the Copyright Tribunal of Australia headed by Justice Jagot, did set a different rate for streaming than for terrestrial broadcast. However the streaming rate that was set will be only marginally more than the current terrestrial rate but significantly less than the PPCA had called for.

CRA, CEO Joan Warner said, “The radio industry is pleased this matter has now been concluded. The industry is currently reviewing the decision.”

The ruling will allow stations a choice between paying 0.35 per cent of gross annual revenue or 0.059 cents per track streamed.

Proceedings are not entirely over, Justice Jagot directed: The parties are to confer and are to inform the Tribunal, by a single agreed email communication, of the further steps necessary to finalise the matter, within 28 days.

In making his judgement, Justice Jagot concluded:
 

  1. None of the schemes referred to us could be considered to be reasonable in the circumstances because PPCA’s scheme required payments on a per stream basis and CRA’s scheme(s) required payment on a percentage of revenue basis.  In particular, we said at [264] that “we accept CRA’s submission that it would not be reasonable to force radio stations to pay for simulcasting on a per stream (and no other) basis”.  Despite an express invitation to consider a scheme in which radio stations were given the option of paying on either basis, no scheme to that effect was proffered by the parties during the first tranche of the hearing.
  2. Another reason that none of schemes referred to us could be considered to be reasonable in the circumstances was because the percentage of revenue rates CRA proposed were too low and the per stream rates PPCA proposed were too high.  Because the parties refused to engage with the case of the other party in any meaningful way, we were left without a rational foundation in the case as put for either party for determining an upper range for a percentage of revenue rate and a lower range for a per stream rate.
  3. A scheme which permitted radio stations to decide whether to pay on a percentage of revenue basis or a per stream basis (a hybrid scheme) would be reasonable.  In this regard we said at [123] that “the advantages of per stream payments for simulcasting are such that it would be reasonable to try to encourage radio stations to implement such a process”.  At [125] we added this caveat:
We do not suggest that it would be appropriate for any incentive to be provided by increasing the percentage of revenue rate that would otherwise be applied.  Such an approach, in our view, would not be reasonable.  The incentive relates to the implementation of the per stream payment scheme and, accordingly, it is reasonable only to reduce that rate below what it would otherwise be for a period.
 
4. A scheme which accepted that, as a starting point, the sound recording right has at least the same value as the musical works right could be reasonable.

 

To read the full judgement, go here.

For more articles on this topic dating back to 2010, go here.

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