It is quite possible to be an IP practitioner in Australia and have little or no experience of the Copyright Tribunal of Australia. In essence, it is where copyright licensors (often collecting societies) and their licensees turn when they can not agree on a licence. The Tribunal has jurisdiction in relation to both the statutory licences for government and education as well as voluntary licence schemes. And while it is an administrative body, it is housed within the Federal Court of Australia and its President and Deputy Presidents are Judges of the Federal Court. The Tribunal also has a number of part-time lay members with relevant expertise.
My own introduction to the Tribunal came 20 years ago when I worked on the Copyright Law Review’s Inquiry on the Jurisdiction and Procedures of the Copyright Tribunal. The Tribunal has also come up in the Ergas Review (which was taking place at the same time as the CLRC Inquiry) and more recently, in the Productivity Commission’s Inquiry into IP Arrangements in 2016.
Over the last two decades it seems that the Tribunal has gone through periods when there is a high demand for its services, and other times when there is little or no demand. This is evident from a look at its published decisions. For example, in 2011 there was not a single decision of the Tribunal. Right now the Tribunal seems to be experiencing a peak. At present, there are six matters before the Tribunal. Two of these matters concern Copyright Agency’s statutory licences with the State of New South Wales (for use of copyright material for the services of the Crown) and universities (under the educational statutory licence). Three further applications concern Copyright Agency’s licences of media monitoring organisations Meltwater, Isentia and Stream. These three matters are to be heard together in March 2020.
The Tribunal is not the place to go when you want a matter resolved quickly and cheaply. Proceedings tend to be lengthy and reserved for only high value disputes. In this context, it makes sense that the Tribunal has the power to make interim orders which enable interim licence terms to be set or payments made pending the Tribunal’s final determination. This year, the Tribunal has already made two such orders. In March, Greenwood P handed down a decision concerning the interim media monitoring licences. And just last week, Deputy President Perram handed down a decision concerning interim payments to be made to Copyright Agency by the universities under their statutory licence. Evidence before the Tribunal in that matter included affidavits from authors and publishers who rely on royalties distributed by Copyright Agency.
And that is a reminder of what it is all about. The Copyright Tribunal is not a place where sexy questions of copyright law are considered. It is about rate setting. How much should someone pay for a particular use of copyright material? How much is fair remuneration? As such, it is where copyright law mostly squarely meets economics. And as we know all too well, these disciplines are not always easily reconciled.
For over a decade (following reforms recommended by Ergas) the Australian Competition and Consumer Commission (ACCC) has been able to apply to become a party in matters before the Tribunal regarding voluntary licence schemes. It has done so twice: in the PPCA and Fitness Australia matter and in the Digital Downloads matter.
The ACCC can also make guidelines to which the Tribunal must have regard. After issuing some draft guidelines in 2006, the ACCC finally published its 2019 Copyright Guidelines on 11 April. The Guidelines cover the economics of copyright and collective licensing before going on to consider pricing principles. In particular, the Guidelines set out approaches to benchmarking and how to construct a hypothetical bargain.
The stated purpose of the Guidelines is explained as follows:
The ACCC considers that the Copyright Guidelines should focus on providing a framework that focuses on countering any market power held by collecting societies and providing material to assist parties preparing economic evidence to support their claims. Indirectly, they can also facilitate licence negotiations and thereby reduce the number or scope of matters requiring determination by the Copyright Tribunal, as well as assist the Copyright Tribunal in matters that are brought before it. These guidelines apply to the determination of charges; they do not seek to provide guidance on non-price terms of copyright licences. p 5.
It will be interesting to see what (if any) impact the ACCC’s Guidelines have on the conduct of the media monitoring matters currently before the Tribunal and on the negotiation of licences more generally. At the very least, the ACCC can tick the Guidelines off its “to do” list and focus on other (more pressing) matters.
Photo: Fiona Phillips 2019.