Gilbert + Tobin has successfully obtained a ruling from the Australian Copyright Tribunal that the commercial radio industry will have to pay significant licence fees for the streaming of music online.
The landmark ruling is the culmination of more than six years of legal proceedings between Gilbert + Tobin client, Phonographic Performance Company of Australia (PPCA) representing the recording industry and Commercial Radio Australia (CRA), the peak body for commercial radio broadcasters in Australia.
CRA initially argued that broadcasters already paid copyright licence fees for the broadcast of music and should not have to pay any additional fee for the online simulcasts of those broadcasts. On behalf of PPCA, Gilbert + Tobin argued first in the Federal Court and then the Full Court that an online simulcast was not a broadcast, and therefore the simulcast of music online was a separate use requiring a separate licence from the existing industry broadcast licence. The Full Court found in favour of PPCA in February 2013. CRA’s application for special leave to appeal that decision was rejected by the High Court.
Following success in the Full Court, PPCA launched proceedings in the Copyright Tribunal in 2013 to determine the value of the licence fees payable by radio stations in respect of their online simulcasts. Given the increasing importance of streaming rights, the case has been one of the most hard fought before the Tribunal, and has resulted in a new and significant revenue stream for the recording industry in respect of the use of their music online.
The new licence scheme confirmed by the Tribunal will mean that radio stations have the option of paying licence fees on a per stream basis or as a percentage of their revenue. The case is also significant internationally as this is one of the first times that a per stream rate in respect of online radio simulcasts of this nature has been ordered by a Tribunal or Court outside of the United States.
The decision is the most recent in a line of Copyright Tribunal decisions in which Gilbert + Tobin has successfully argued for a substantial increase in the licence fees to be applied for the use of music.
The Gilbert + Tobin team was led by IP partner, Siabon Seet.