Australasian Performing Right Association v Fitness Industry Confederation & Others

NO. CT 1 of 1993 

CATCHWORDS

COPYRIGHT - reference to Copyright Tribunal under s.154 of Copyright Act 1968 - applicant proposing to bring a licence scheme into operation - licence scheme relating to performance of musical works in the course of fitness, health and/or aerobic classes - application undefended - whether amount agreed upon by parties reasonable in the circumstances.

Copyright Act 1968, ss. 154, 157.

TRIBUNAL: Sheppard P, Ms M. Barron, Dr J. Scutt
PLACE: Sydney
DATE: 15 March 1995

COMMONWEALTH OF AUSTRALIA
COPYRIGHT ACT 1968  

IN THE COPYRIGHT TRIBUNAL
NO. CT 1 of 1993

Reference by:
Australasian Performing Right Association

Respondents:
Fitness Industry Confederation of Australia
Victorian Fitness Industry Association
Registered Clubs Association of New South Wales
YMCA
Quality Health and Fitness Centres

MINUTES OF ORDER

TRIBUNAL: Sheppard P
Ms M. Barron (Member)
Dr J. Scutt (Member)

DATE: 15 March 1995

PLACE: Sydney

The Tribunal orders that, pursuant to subsec. 154(4) of the Copyright Act 1968, the licence scheme, a copy of which has been initialled and dated by the President and annexed to this Order, be confirmed.

COMMONWEALTH OF AUSTRALIA
COPYRIGHT ACT 1968  

IN THE COPYRIGHT TRIBUNAL
NO. CT 1 of 1993

Reference by:
Australasian Performing Right Association 

Respondents:
Fitness Industry Confederation of Australia
Victorian Fitness Industry Association
Registered Clubs Association of New South Wales
YMCA
Quality Health and Fitness Centres

TRIBUNAL: Sheppard P
Ms M. Barron (Member)
Dr J. Scutt (Member)
DATE: 15 March 1995
PLACE: Sydney

REASONS FOR DECISION

SHEPPARD P AND MS BARRON: This is an application made by APRA pursuant to s.154 of the Copyright Act 1968. So far as it is relevant, the section provides that, where a licensor proposes to bring a licence scheme into operation he or she may refer the scheme to the Tribunal. The parties to a reference under the section are the licensor referring the scheme and such organisations and persons as apply to the Tribunal to be made parties to the reference and are made parties in accordance with subsec. 154(3).

The licence scheme which APRA wishes to bring into operation is a licence scheme relating to the performance of musical works within APRA's repertoire in the course of fitness, health and/or aerobic classes for the purpose of accompanying physical exercise. It is unnecessary to refer to the detail of the scheme. It is enough to say that the licence fee for what is described as the first licence period is to be 50c per aerobic class and 25c per circuit class. For the second licence period the fees are 70c and 35c respectively. The terms "First Licence Period" and "Second Licence Period" are defined respectively in Clause 6 of the licence as the period of twelve months from the commencement date of the licence and the successive annual periods of the licence thereafter. Clause 6 provides that, subject to the terms and conditions of the licence agreement, the licence shall be for a period of twelve calendar months from the commencement date and shall thereafter continue for successive annual periods until determined by either party by the giving to the other of at least one month's notice in writing. The amounts of the licence fee are indexed in accordance with the Sydney All Groups Consumer Prices Index September quarter.

The application made to the Tribunal was widely advertised and was also notified to interests which it was thought might have an interest in its outcome. As a consequence, there were a number of appearances. Two of the principal of these were by the Registered Clubs Association and the Fitness Industry Confederation of Australia. Each of those organisations originally opposed the application but, after negotiations, withdrew their opposition. The matter was listed for hearing on 3 March last. We heard short submissions from each of the parties and also considered correspondence received from other interests indicating that there was no opposition to the application. However, there was uncertainty concerning the Victorian Fitness Association. For that reason the matter was adjourned until today so that the position could be clarified. It is now clear that the Victorian Fitness Association makes no opposition to the application.

We have read the evidence filed in the matter and we have had the benefit of an inspection of an aerobic class making use of music within the APRA repertoire at the New South Wales Leagues Club. We are satisfied, on the material before us, that the licence scheme is one which ought to be confirmed. In reaching our conclusion we have been alert to the fact that we have not reached our conclusion after a contested hearing. In this respect this case is similar to Reference by Australasian Performing Right Association Limited under s.154 of the Copyright Act 1968 (1992) 25 IPR 257. There the Tribunal said (at 268) that because the Tribunal had had to conduct its review of the material in a reference which had become uncontested, it had not had the benefit of a keen contest between two opposing parties which was likely to be productive of a much closer consideration of a problem such as that which confronted the Tribunal.

One of the concerns that the Tribunal has is that its confirmation of the licence scheme here will tend to make it something of a common rule in this section of the industry. It will not in fact be a common rule because no person will be bound by the licence agreement unless he or she agrees to sign it. If persons consider the terms of the licence agreement unreasonable in the particular circumstances of their cases, it is always open to them to approach the Tribunal pursuant to s.157 of the Act. Subsection 157(2) thereof provides that a person who claims, in a case to which a licence scheme applies, that he or she requires a licence but that the grant of a licence in accordance with the scheme would, in that case, be subject to the payment of charges, or to conditions, that are not reasonable in the circumstances of the case, may apply to the Tribunal under the section. The Tribunal's jurisdiction to make an appropriate order in such a case is provided for in subsec. 157(6).

In the result, we would propose that the order which the Tribunal make be an order that, pursuant to subsec. 154(4) of the Copyright Act 1968, the Tribunal confirms the licence scheme initialled and dated by the President and placed with the papers.

DR SCUTT: I agree generally with the reasons of the President, Justice Sheppard and Member Maureen Barron.

In the course of the hearing, reference was made to the need to foster good health in the community and the positive aspects of aerobic dancing and associated gymnastic activities in this regard. The importance of promoting good health and well being as a general proposition is undeniable. At the same time, the role of the Tribunal is to ensure that (in this case) composers of music receive a fair and reasonable return for their work. This principle, in the context of possibly competing public purposes, has been clearly stated in Copyright Agency Ltd v Department of Education (NSW) (1985) 59 ALR 172, 200 and Reference by Australasian Performing Right Association Ltd; Re Australian Broadcasting Corporation (1985) 5 IPR 449, 480-1. To paraphrase Justice Sheppard in the Department of Education (NSW) case, it is not the role of composers to subsidise health and fitness programs. Where a public purpose is seen in the maintenance of such programs, that is a matter for governments.

I certify that this and the 5 preceding pages are a true copy of the reasons for decision herein of the members of the Copyright Tribunal.

Associate to President

Dated:

LICENCE AGREEMENT

LICENCE NO:

LICENCE SCHEME L(A)
Fitness & Aerobic Centres

1. NATURE OF THE AGREEMENT

AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED ("APRA") hereby grants to the Applicant a Licence for the Applicant, and the employees and agents of the Applicant to perform any and all works from within APRA's repertoire, together with any words usually associated therewith given in the course of circuit and/or aerobic classes, where music is provided by the use of records and/or tapes (other than those contained in a coin operated machine) for the purpose of accompanying physical exercise.

2. SCOPE OF LICENCE

This Licence is granted subject to the terms and conditions hereof, and is restricted to the public performances at the locations and in the manner specified herein. It is not to be implied that this Licence in any way authorises any acts not falling within the scope of this Licence; additional licence or licences should be obtained where necessary. In particular this Licence shall not extend to nor shall it authorise any of the following:-

(a) any act not expressly authorised by this Licence,

(b) the transmission or public reception of any performance beyond the precincts of the premises,

(c) the performance of dramatico-musical works in their entirety,

(d) the performance of musical works or excerpts therefrom performed in a dramatic context: "dramatic context" means in conjunction with acting, costumes, scenic accessories, scripted dialogue or other dramatic effects, or as a ballet,

(e) the performance in whole or in part of any music and/or associated words composed or used for ballet if accompanied by a visual representation of that ballet or part of it,

(f) the performance of oratorios and/or large choral works (ie. those of more than 20 minutes' duration) in their entirety, and/or

(g) the performance of any music and/or associated words so as to burlesque or parody the work, or of any music and/or associated words which have been notified by APRA to the Licensee in writing as being prohibited from performance by any means.

3. PAYMENT OF LICENCE FEES

In consideration of the grant of the Licence, the Applicant shall pay to APRA by the method set out in clause 7:

(a) the Licence Fee for the First Licence Period, together with the stamp duty on the Agreement, and

(b) the Licence Fee for the Second and each subsequent Licence Period.

4. LICENCE FEES

(a) The Licence Fee for a Licence commencing in the First Licence Period shall be:-

• 50 cents per aerobic class
  25 cents per circuit class

(b) The Licence Fee for a Licence commencing or renewing in the Second Licence Period and each subsequent licence period shall be:-

• 70 cents per aerobic class
  35 cents per circuit class

5. CPI

The amounts per class referred to in Clause 4(b) are to be indexed annually from the commencement of the Third Licence Period in accordance with the Sydney All Groups Consumer Prices Index September Quarter.

6. DURATION OF THE LICENCE

Subject to the terms and conditions set out herein, this Licence shall be for a period of 12 calendar months from the Commencement Date (the "First Licence Period"), and shall thereafter continue for successive annual periods (the "Second and subsequent Licence Periods") until determined by either party by the giving to the other, by certified mail, of at least one month's notice in writing.

7. METHOD OF PAYMENT AND SUPPLY OF INFORMATION

(a) The Applicant shall pay to APRA:-

(i) a provisional fee on account of the Licence Fee for the First Licence Period (as calculated in (b)), together with the Stamp Duty on the Agreement, no later than 14 days after the Licensee is notified by APRA of its execution of this Agreement, and

(ii) a provisional fee on account of the Licence Fee for the Second and each subsequent Licence Period (as calculated in (c)), on or before the commencement of the annual period in question.

(b) The provisional licence fee for the First Licence Period shall:

(i) in the case of premises where music has been used to accompany exercise for the previous 12 months period, be based on the number and type of classes conducted during that period;

(ii) in the case of premises where music has been used to accompany exercise for a period of less than 12 months, be based on the number and type of classes conducted adjusted for a 12 month period;

(iii) otherwise, be based on a reasonable and genuine estimate of the expected number and type of classes conducted during the period.

(c) Within two weeks of the expiry of the First Licence Period, and of the Second and each subsequent Licence Periods, the Applicant shall deliver to APRA a true and accurate statement in the form of the Schedule hereto specifying the number and type of classes during the completed period in question. APRA may, in its discretion, require any such statement to be in the form of a statutory declaration.

(d) (i) APRA, its accredited representative or nominee, may for the purpose of verifying any statement in (c) above, inspect the records and documents within the possession of the Applicant showing, or which are capable of being used to calculate or show directly or indirectly the number and type of classes conducted,

(ii) the Applicant will, within 14 days of written request from APRA, make available all such records and documents and do all things so as to enable APRA, its representative or nominee, to verify and inspect them and

(iii) the costs of any such inspections and verifications will be borne by APRA PROVIDED THAT IF there is revealed by such inspection a number of classes/type of classes conducted (the "revealed number") which exceeds by more than 5% the number of classes/type of classes notified by the Applicant to APRA (the "supplied number") then the costs of such inspection shall be borne by the Applicant.

(e) Upon APRA's receipt of the statement referred to in (c) APRA shall, after giving credit for the provisional licence fee, notify the Applicant of the balance of such Fee owing to APRA and the Applicant shall pay that balance to APRA within 14 days of such notification. In the event that the provisional licence fee exceeds the Licence Fee, APRA shall refund the excess to the Applicant within 14 days of receipt of the statement.

(f) When APRA is notified of any changes to the particulars supplied by the Applicant herein, including by way of a statement referred to in (c), then upon APRA's acceptance of same this Licence shall thereafter apply with such particulars as amended by, and in accordance with, the details of that notice.

(g) APRA, by its accredited representative or nominee, shall have unrestricted right of entry to the premises during exercise classes, subject only to APRA, its servants and agents conforming with the usual dress code enforced at the premises and paying the usual casual admission fee.

8. BREACH OF LICENCE

If the Applicant breaches any provision of this Licence, or fails to make payment of the Licence Fees when due or thereafter within 30 days of APRA's first request for payment of such overdue fees. APRA may forthwith determine this Licence by written notice sent to the Applicant at the address shown in this Licence and thereupon this Licence shall determine. Termination shall not extinguish or prejudice APRA's rights to recover any monies due under the Licence. All sums payable under this Licence shall be recoverable by APRA in any court of competent jurisdiction. In any such proceedings proof that a notice of revised provisional and/or Annual Licence Fee/s purporting to have been calculated in accordance with the terms of the Licence has been sent to the Applicant shall be prima facie evidence that the sum therein mentioned is the sum payable by the Applicant to APRA under this Licence.

9. ASSIGNMENT

The Applicant shall not assign or sub-licence any of the rights granted by this Licence without APRA's prior consent in writing.

10. NOTICES

Unless the contrary is specified, any notice from one party to the other shall be deemed to have been duly given if sent by ordinary pre-paid post addressed to the party at the address shown in this Licence, and the date of the giving of such notice shall be deemed to be two days after the date of posting.

11. DEFINITIONS

In this Licence, including the Schedule hereto:-

"aerobic class" includes "step", "slide", "hi-impact", "low impact", "advanced", "intermediate", "beginners", "new body", "cardio-funk" and "aquarobics" classes;

"Commencement Date" means the date on which the Licence is entered into;

"Consumer Price Index" means the Index of that title All Groups Sydney published by the Australian Bureau of Census and Statistics or any authority substituted by Statute, related to base year 1989-90 equals 100, and "September Quarter" in that respect means quarter year ending 30 September;

"dramatico-musical work" means an opera, operetta, musical play, revue or pantomime insofar as it consists of words and music written expressly therefor;

"First Licence Period" means that period of 12 months following a Commencement Date occurring on or between 1 March 1995 and 28 February 1996;

"Second Licence Period" means that period of 12 months following a Commencement Date occurring on or between 1 March 1996 and 28 February 1997;

"Third Licence Period" means that period of 12 months following a Commencement Date occurring on or between 1 March 1997 and 28 February 1998;

"record" means a disc, tape, paper or other device in which sounds are embodied.

12. INTERPRETATION

Throughout this Licence, whenever required by the context, the use of the singular number shall be construed to include the plural, and the use of any gender shall include all genders.

13. NO WAIVER

No waiver of any breach of this Licence shall be deemed to be a waiver of any preceding or succeeding breach and no waiver shall be effective unless in writing.

SIGNED AS AGREED

APRA accepts the Application and grants a Licence for the consideration and on the terms and conditions set out in the Licence Application and Licence Agreement herein.

(AER/LICENCE)
25.1.95