In the matter of a reference under section 154 of the Australian Performing Rights Association Ltd v. Australian Broadcasting Commission [1982] FCA 272

In the matter of a reference under section 154 of the Australian Performing Rights Association Ltd v. Australian Broadcasting Commission [1982] FCA 272

The Australian Broadcasting Commission is not the Commonwealth nor an agent or instrumentality thereof for the purposes of s.183 of the Copyright Act 1968. Its legislative framework provides for considerable autonomy and limited governmental control, which does not support characterisation as an instrumentality of the Crown. Consequently, broadcasts made by the Commission are not, without more, acts done for the services of the Commonwealth within s.183(1). The Copyright Tribunal has jurisdiction to confirm or vary a licence scheme under s.154, provided the scheme falls within the definition in s.136.

Parties
Applicant: Australasian Performing Right Association Ltd.; Respondent: Australian Broadcasting Commission
Jurisdiction
Australia
Judgment Date
15 December 1982
Procedural Posture
Reference From Copyright Tribunal (case Stated) / Determination of Case Stated/questions of Law
Outcome
Questions answered: The Commission is not an agent or instrumentality of the Commonwealth for s.183; its broadcasts are not acts for the services of the Commonwealth under s.183(1); the Tribunal has jurisdiction under s.154 (assuming the scheme satisfies s.136). Commission to pay APRA's costs of the reference.
Legal Topics
Instrumentality of the Crown, Copyright Infringement by Government Bodies, Jurisdiction of Copyright Tribunal, Licence Schemes Under Copyright Act
Copyright Law Administrative Law Instrumentality of the Crown Copyright Infringement by Government Bodies Jurisdiction of Copyright Tribunal Licence Schemes Under Copyright Act

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Parties

Australasian Performing Right Association Ltd.

Applicant

Australian Broadcasting Commission

Respondent

Procedural Posture

Reference From Copyright Tribunal (case Stated) / Determination of Case Stated/questions of Law

Legal Issues

  1. 1 Whether the Australian Broadcasting Commission is an agent or instrumentality of the Commonwealth for the purposes of s.183 of the Copyright Act 1968
  2. 2 Whether acts (broadcasts by radio or television) done for the National Broadcasting and Television Service conducted by the Commission are done for the services of the Commonwealth within s.183(1)
  3. 3 Whether the Tribunal has jurisdiction to make orders confirming or varying the licence scheme pursuant to s.154 of the Copyright Act 1968

Ratio Decidendi

The Australian Broadcasting Commission is not the Commonwealth nor an agent or instrumentality thereof for the purposes of s.183 of the Copyright Act 1968. Its legislative framework provides for considerable autonomy and limited governmental control, which does not support characterisation as an instrumentality of the Crown. Consequently, broadcasts made by the Commission are not, without more, acts done for the services of the Commonwealth within s.183(1). The Copyright Tribunal has jurisdiction to confirm or vary a licence scheme under s.154, provided the scheme falls within the definition in s.136.

Court Disposition

Questions answered: The Commission is not an agent or instrumentality of the Commonwealth for s.183; its broadcasts are not acts for the services of the Commonwealth under s.183(1); the Tribunal has jurisdiction under s.154 (assuming the scheme satisfies s.136). Commission to pay APRA's costs of the reference.

Orders

  • Questions stated by the Tribunal answered as follows: 1. No; 2. No; 3. Yes, assuming the licence scheme falls within s.136.
  • The Australian Broadcasting Commission to pay the costs of the reference to Australasian Performing Right Association Ltd.