In this piece I provide a brief
history of copyright in Australia seen through the lens of an Australian
High Court ruling made in 2012. The case is Phonographic Performance
Company [PPCA] of Australia Limited v Commonwealth of Australia [2012]
HCA 8 (hereafter, HCA 8, 2012). The case encapsulates the history of
copyright law in Australia, with the judicial decision drawing
substantive parts of its rationale from the centuries old Statute of
Anne (8 Anne, c. 19, 1710), as well as copyright acts that regulated the
Australian markets prior to 1968 and beyond.
Context and terms
Royalty caps regulate the amount that
can be claimed by collection societies for performance royalties on
musical works. The one percent cap on the broadcast of recorded
performances was first legislated as part of the Australian Copyright Act
(1968), the Commonwealth statute that has since governed intellectual
property rights in Australia. The basis of capping arrangements (from
the perspective of radio) is that: the Australian royalty collection
societies (APRA, AMCOS, CAL, Screenrights, and PPCA) have historically
been seen as monopolies, that broadcasters fall under a compulsory
licensing arrangement, and that royalty caps are necessary to protect
the commercial radio industry from extortionate claims against their
revenues by publishing and recording companies (Atkinson, 2007).
CRA’s public position on the cap and
role of radio is that commercial radio champions local musicians,
invests billions in airtime to promote artists, and defends against the
profiteering of ‘multinational record companies’, adding that their
efforts add up ‘to billions of dollars in airtime and promotion’ (CRA,
2012a).
Platemakers, common good, and the one percent cap
Any historical view of copyright law in
Australia inevitably leads to the Statute of Anne, a mercantile era law
passed in 1710 that was premissed on a common good associated with the
relationship between publishing and public learning. The High Court’s
decision on the one percent cap was made in the context of the 1968 Act.
Here is part of the High Court’s response to the challenge:
speaking generally
the 1911 Act, like the Statute of Anne, took into account and balanced
the interests of authors, entrepreneurs and the public. The public’s
interest lay in the dissemination of copyright works, including
dissemination on reasonable terms. Any detailed consideration of the
historical context of the Statute of Anne supports this construction of
its intent and its provisions. (HCA, 2012)
Anne is unambiguous on the public
pedagogical function of copyright law. Its title declares it to be ‘An
act for the encouragement of learning, by vesting the copies of printed
books in the authors or purchasers of such copies …’ (8 Anne, c 19). It
is also clearly anti-monopolistic.
The intention of Anne was to assert
protections for authors against the market dominance of monopolies which
had historically been held in Britain by the printing guilds (Ochoa and
Rose, 2002). Its rationale was the common good derived from the
publication of new works and the public learning associated with that
dissemination. That the High Court draws on Anne for its historical
force is ironic because the bulk of copyrights in Australia (as
elsewhere) are controlled by an oligopoly of large international
corporations. That fact is also noted by the High Court in its decision:
The second to fifth
plaintiffs [Sony Music, Warner Music, EMI Music, and Universal Music PG]
are the owners or exclusive licensees of copyright in numerous sound
recordings, including sound recordings made prior to 1 May 1969. They
collectively control (as owners or controllers) the majority of sound
recordings which have been commercially released in Australia in the
last 70 years. (HCA, 2012)
So on one side of the 2012 decision
there are global oligopolies in recorded music copyrights; on the other,
oligopolies in local, state, and national media properties. Australia
is known for its intense level of media ownership concentration. CRA
purports to represent 99 per cent of Australia’s 260 commercial radio
licensees. It also notes recent consolidation of 80 percent of all
stations into 12 networks (CRA 2012b).
The unintended irony of the High Court
decision can be understood as good law only if, as Attali (1985) argues,
a music recording has been seen historically as ‘a special kind of
writing’ by lawmakers (1985, p. 98). That appears to be the case in the
current decision which reasserts the validity of separating
compositional copyrights from those that subsist in recorded works. The
decision refers to the Australian copyright Act of 1911 (which was
replaced by the 1968 Act), noting that ‘the 1911 Act granted a copyright
to record manufacturers, which was expressly conflated with the
copyright of authors and composers of original musical works’ (HCA,
2012). Following the Westminster Act of 1956, which ‘distinguished
between copyright in works, including musical works, and copyright in
subject matter other than works’ and ‘which included separate
identification of the nature of copyright in sound recordings’, the 1968
act clearly distinguishes between the rights pertaining to composition
and those that pertain to recording (HCA, 2012). The net result of this
was to give the corporate “person” making the recording a separate but
similar status to that of the person who composed the work. The central
analogy drawn in the decision in respect of record duplication is the
notion of the “plate maker”, a technical concept that has its origins in
printed media.
The 2012 High Court decision sidesteps
impacts upon composers, performers, and individuals (ie. non-corporate)
record producers that may extend from its decision, and this too is a
function of history. The unspoken economic argument that underpins the
decision runs like this: there is significant capital investment
involved in the plant and equipment required to make an original
recording and its subsequent copies. It is in the common good that these
services continue because they contribute to public learning. They
cannot continue without statutory copyright protection that allows them
to profit from their authorship and protects investment in production of
the “plate”. However, privileging the corporate “plate maker” in
current circumstances ignores the dramatically lowered cost of producing
and disseminating recorded musical works brought about by the
widespread availability of digital production technologies and the fact
that every digital recording is now the equivalent of a “plate” in terms
of its potential to generate infinite high fidelity copies.
The compulsory license
A major difference between the 1911 Act
and the 1968 Act is the 1968 introduction of a compulsory broadcast
license and an associated blanket protection against copyright
infringement. While the Imperial Act of 1911 included a blanket
compulsory recording license for published works, it also provided the
right for any copyright controller to refuse public performance of a
work, regardless of whether it was recorded or not. This resulted in a
need for broadcasters to seek and negotiate individual rights for every
recorded work. It was this discretionary power, held by both composers
and record manufacturers, that broadcasters spent the following decades
trying to undo.
The right to refuse caused havoc for
broadcasters in 1931 when record manufacturers withdrew the right to
broadcast any music whatsoever because the record companies (at the
height of the Great Depression) believed that airplay had killed off
record sales (Atkinson, 2007, ch. 6). It was during the ensuing
copyright wars that the framing of copyright collection societies as
voracious monopolies became entrenched in the construction of national
and international copyright legislation ever since (2007; cf. Attorney
General, 2005).
Atkinson (2007) summarises the
Government’s views on the dispute at the time as follows: “APRA, a
virtual monopolist backed by the law, had too much negotiating power.
Thus the problem [the Federal Government] tried to solve was how to
ameliorate the bargaining position of the commercial users of music” (p.
169). Negotiations between broadcasters and manufacturers followed the
airplay ban and the manufacturers settled with the broadcasters on
somewhat cumbersome terms:
They required the B.
Class stations to discontinue request items, announce the maker of the
record and full particulars of the record, state that copyright was
reserved, broadcast only records of the associated manufacturers, limit
the number of times a record was broadcast, limit broadcasts of records
issued prior to the ban to once a week, and pay a broadcast fee. (2007,
p. 176).
Broadcasters also continued to do battle
with APRA over its fees and conditions. Atkinson (2007) points to the
report on APRA delivered to the Federal government by the Association
for the Development of Wireless in Australia (ADWA) (ch 4). The
government’s ear was finely tuned to hearing criticism against APRA
because it had especially targeted the publicly funded (A-Class)
licensees and had, variously,
claimed up to 21 per
cent of the broadcasters’ net revenue in license fees, withdrawn
consent for the playing of popular works, prevented the broadcast of
more than two numbers from an opera in a single radio program,
restricted to four the number of times per week that popular items could
be played, claimed twice for the same performance and claimed fees for
the performance of works out of copyright. (2007, p. 132)
It is in this context of ongoing
industrial warfare against APRA and the record manufacturers that the
broadcasters first recommended a legislated broadcast royalty cap:
“Australia should advocate, at the 1928 Rome Conference to revise the
Berne Convention … to permit members to limit the amount of royalty
payable by broadcasters” (Atkinson, 2007, p. 134).
The development of the 1968 Act took
decades. According to Atkinson (2007), only at rare and exceptional
times during those decades did debate turn towards the effects of the
legislation upon composers and other artists (2007, ch 11). Labor Party
figures, Gilbert Duthie and Rex Connor, were notable in their efforts to
promote the rights of artists and composers while decrying the new
legislation for its almost singular concern with balancing the rights of
corporate parties, with some thought being given to the library and
education sectors and none to the consuming public (2007, pp. 316-319).
Under the 1968 Act, as soon as a new
recording is made in Australia it becomes a limited property right for
any and all Australian broadcasters. While the broadcast attracts a
royalty, the payment for it is automatically collected by a national
system of monopolies whose function it is to redistribute those payments
to copyright owners and controllers, neither of which are copyright
originators, at least where the bulk of royalty distributions are
concerned (HCA, 2012). The rights of the composer are merely a
by-product of Commonwealth legislation: “copyright does not subsist
otherwise than by virtue of this Act” (Australian Copyright Act, 1968).
Australia’s copyright law was historically constructed in the context of a copyright using market.
Australia’s early copyright laws were written by Imperial Britain in
order to protect British rights (Atkinson, 2007, ch 10). That assumption
carried over into the 1968 Act with US and British companies dominating
negotiations on the side of the record companies. The status of
Australia as a ‘net importer’ of copyrights, a situation decried by the
framers of the 1911 Act, was either ignored or not understood by the
framers of the 1968 Act (Atkinson, 2007). The 1968 Act can be seen as
being made, at least in large measure, on behalf of foreign interests,
namely the foreign dominated record companies who, at the time of the
Act’s framing, were responsible for 80 per cent of all recorded music
broadcast in Australia (2007, p. 325).
The 2012 decision and some conclusions
PPCA challenged the one percent cap on
the grounds that it was unconstitutional. It claimed that the 1968 Act
exceeded the grasp of the Australian Constitution by acquiring new
property rights without “just terms” (HCA, 2012). However, ‘just terms’
were never addressed in the decision because of the 1968 Act which
extinguished the Imperial Act of 1911: “copyright does not subsist
otherwise than by virtue of this Act”. Having decided that all
copyrights prior to 1968 had been extinguished the question of just
terms never arose (HCA, 2012).
Paradoxically, despite adverse
legislative conditions for recorded music professionals almost
everywhere, production of music has increased exponentially, with an
estimated 97 million songs listed in the Gracenote database by 2011
(Resnikoff, 2011). Public access to these has also increased
logarithmically through the proliferation of internet technologies and
social media. These two facts not only challenge the idea that current
copyright arrangements are useful in the promotion, production, and
dissemination of new ideas and sources of cultural expression; combined
with rapidly declining incomes, they entirely challenge the notion that
copyright has the effect of protecting composers against the might of
industrial monopolies (see also, Atkinson, 2007, ch1). In other words,
the aims and rationale of the Statute of Anne, which endures as the
basis of Australian copyright law, are no longer relevant under current
conditions. Instead, [pullquote]the livelihood of composers seems
steadily to be disappearing, at least according to official statistics,
while monopoly is bolstered by copyright at every level.[/pullquote]
The question of a common law right to
own and exploit one’s own creations may yet again be addressed, but
perhaps next time it will not be publishers leading the charge. The
legislative recognition of a common law copyright would fundamentally
change the nature of composers’ negotiations with broadcasters, ISPs,
publishers, recording companies, and film makers, especially where
remuneration and copyright periods are concerned. The idea that anything
other than a blanket license could function in mass societies is nearly
impossible to justify or even imagine. However the terms on which such
licenses are given are quite possibly open to a challenge on the basis
of restraint of trade, just terms, and price-fixing issues.
The various paradoxes and ironies of the
HCA 2012 decision that I have highlighted here suggest that the current
Australian copyright regime has a limited life. Australian music
producers are protected to the extent that they are a) part of one or
more of the monopolies involved in the history of Australian copyright;
and b) close enough to the centre of the recording industries that they
can acquire a steady flow of paid work. This is not to suggest throwing
the baby out with the bathwater. It is, however, essential for the
cultural and economic health of the nation to increase the ability to
Australian musicians to earn a living, and to the extent that copyright
legislation is a barrier to that, it must inevitably be changed.
References
Atkinson, B. (2007). The true history of copyright 1905-2005: the Australian experience. Sydney: Sydney University Press.
Attali, J. (1985). Noise: The political economy of music. (Trans. B. Masumi). Minneapolis: University of Minnesota Press.
Attorney General of Australia. (2005). Review of one per cent cap on licence fees paid to copyright owners for playing sound recordings on the radio [discussion paper]. Canberra: Commonwealth of Australia.
Commercial Radio Australia (CRA). (2012a). Commercial Radio Australia Annual Report 2011-12. Sydney: Commercial Radio Australia.
CRA (2012b). What is commercial radio Australia? Available online at: http://www.commercialradio.com.au/index.cfm?page_id=1002. Accessed November, 2012.
High Court of Australia (2012). Phonographic Performance Company of Australia Limited v Commonwealth of Australia [2012] HCA 8. Available online at: http://www.austlii.edu.au/au/cases/cth/HCA/2012/8.html. Accessed June 12, 2012.
Ochoa, T. & Rose, M. (2002). The Anti-Monopoly Origins of the Patent and Copyright Clause Journal of the Patent and Trademark Office Society, 84 (909): 675-706.
Resnikoff, P. (2011). There Are 97,000,000 Songs In This World… Digital Music News (October 7, 2011). Available online at: http://www.digitalmusicnews.com/stories/100611supersaturation. Access November, 2011.
Smythe, D. (1981). Dependency Road: Communications, Capitalism, Consciousness, and Canada. New York: Ablex Publishing.
This is an edited version of a longer article: Graham P (2013) Australian Copyright Regimes and the Political Economy of Music, published in Music Business and the Experience Economy, Springer.
Source: musicaustralia.org.au
