Reference by Phonographic Performance Company of Australia Ltd (Summons) [2024] ACopyT 1

COPYRIGHT TRIBUNAL OF AUSTRALIA

Reference by Phonographic Performance Company of Australia Ltd (Summons) [2024] ACopyT 1 File number: CT 1 of 2023

Judgment of: ROFE J (DEPUTY PRESIDENT)

Date of judgment: 26 March 2024

Catchwords: PRACTICE AND PROCEDURE – application to issue summons – application to compel document production under ss 164 and 167(3) of the Copyright Act 1968 (Cth) – where applications are objected to

Legislation: Broadcasting Services Act 1992 (Cth) Copyright Act 1968 (Cth)

Cases cited: Reference by APRA AMCOS (Summonses) (2022) 173 IPR 253 Reference by the Phonographic Performance Company of Australia Ltd (ACN 000 680 704) (2009) 84 IPR 393

Number of paragraphs: 42

Date of last submissions: 30 January 2024

Date of hearing: Determined on the papers

Counsel for Phonographic Performance Company of Australia Ltd: Mr C Dimitriadis SC with Ms M Evetts

Solicitor for Phonographic Performance Company of Australia Ltd: Gilbert + Tobin

Counsel for the Commercial Radio & Audio Ltd: Mr J M Hennessy SC with Ms A Campbell

Solicitor for the Commercial Radio & Audio Ltd: Ashurst Australia

COMMONWEALTH OF AUSTRALIA

COPYRIGHT ACT 1968 IN THE COPYRIGHT TRIBUNAL CT 1 of 2023

reference by: PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LTD (ACN 000 680 704) UNDER SECTION 154 OF THE COPYRIGHT ACT 1968 (CTH)

PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LTD (ACN 000 680 704) Applicant

tribunal: ROFE J (DEPUTY PRESIDENT) DATE OF ORDER: 26 march 2024

THE TRIBUNAL ORDERS THAT:

1. Summonses in the form of the proposed summonses provided to the Tribunal on 19 December 2023 issue to: (a) Australian Radio Network Pty Ltd (ACN 065 986 987); (b) Nova Entertainment Pty Ltd (ACN 093 553 989); and (c) Southern Cross Austereo Pty Limited (ACN 109 243 110), returnable on 22 April 2024 at 4.00 pm. 2. The application to compel production by Commercial Radio & Audio Ltd of documents pursuant to ss 164 and 167(3) of the Copyright Act 1968 (Cth) be otherwise dismissed.

REASONS FOR DETERMINATION

ROFE J (DEPUTY PRESIDENT):

1. INTRODUCTION 1 The applicant in the present Reference is the Phonographic Performance Company of Australia Ltd (PPCA). 2 PPCA proposes to bring into operation a new Commercial Radio Broadcasters Licence Scheme (Scheme) to licence commercial radio broadcasters (the Licensees) to communicate PPCA Sound Recordings to the public by way of a radio broadcast using the Broadcasting Services Bands (as defined in s 6(1) of the Broadcasting Services Act 1992 (Cth)). In bringing these proceedings, PPCA seeks to confirm the Scheme as proposed, or alternatively, varied as the Tribunal reasonably sees fit. 3 PPCA identified Commercial Radio & Audio Ltd (CRA) in the Reference as representing commercial radio broadcasters in Australia as being responsible for negotiating the terms on which CRA's commercial radio broadcaster members can broadcast sound recordings. On 30 May 2023, CRA made an application to be made a party to this matter. 4 On 23 November 2023, I made orders by consent pertaining to, inter alia, document production: Document Production 2. On or before 19 December 2023, the parties email to the Associate to Rofe J any: (a) draft summonses containing the agreed Summons Categories, together with a request that the Tribunal exercise its power to issue the summons under s 167 of the Copyright Act 1968 (Cth); (b) draft orders containing the agreed Factual Categories to be disclosed, together with a request that the Tribunal exercise its power to make those orders pursuant to s 164(a) of the Copyright Act; (c) draft summons seeking document production from a party in respect of any Document Categories that are not agreed; (d) draft summons seeking document production from any third party; (e) draft orders seeking Factual Categories to be disclosed; and (f) short written submissions with respect to each of the matters referred to in paragraphs (c) to (e) above. 5 On 19 December 2023, the parties each provided draft summonses and orders pursuant to the above orders. 6 PPCA submitted the following: (a) a draft summons containing the Summons Categories sought from CRA, as agreed between the parties; (b) draft orders containing PPCA's Factual Categories to be disclosed by CRA, of which the parties agreed upon all except one, being what I will call disputed Factual Category 4; and (c) three draft summonses separately addressed to Australian Radio Network Pty Ltd (ARN), Nova Entertainment Pty Ltd (Nova) and Southern Cross Austereo Pty Limited (SCA). 7 CRA submitted the following: (a) a draft summons addressed to PPCA containing Summons Categories as agreed between the parties; and (b) draft orders containing CRA's Factual Categories to be disclosed by PPCA, which was also agreed in its entirety by the parties. 8 The disputed Factual Category 4 of PPCA's Factual Categories sought disclosure of the following: Factual Category 4 – Talent Expenditure The names and annual remuneration of the top 3 highest remunerated radio presenters from ARN, Nova, SCA and West Coast Radio, and the names of the radio presenter's show(s). 9 In making their respective applications to issue the summonses, the parties provided submissions in support, which I shall refer to as the December submissions. 10 On 9 January 2024, I granted leave for the parties to issue summonses to each other. However, I declined to make orders requiring CRA to disclose the information sought in disputed Factual Category 4. Further, I considered it premature to issue summonses to ARN, Nova and SCA at that time. In PPCA's December submissions, it provided no explanation as to how, and why, the four stations in disputed Factual Category 4 were selected (noting that it only sought to issue summonses to SCA, Nova and ARN only, with no draft summons provided for West Coast Radio), how they are representative of CRA's membership, and whether the four stations were likely to fall within the representative sample stations to be provided by CRA. 11 The parties each provided further submissions, on 29 and 31 January 2024 respectively, regarding the relevance and appropriateness of production of documents pursuant to disputed Factual Category 4 and the draft summonses addressed to ARN, Nova and SCA. I shall refer to these submissions as the January submissions. 12 These reasons deal with the dispute regarding disputed Factual Category 4 and the issuance of summonses as sought by PPCA to ARN, Nova and SCA.

2. DISPUTED FACTUAL CATEGORY 4 13 Through disputed Factual Category 4, PPCA seeks to obtain information concerning the annual remuneration of the top three highest remunerated radio presenters from ARN, Nova and SCA in the Financial Year (FY) 2022/2023. 14 PPCA seeks either (a) an order requiring CRA to disclose the information under disputed Factual Category 4; or (b) for the issuance of the summonses to ARN, Nova and SCA. 15 PPCA said that it initially sought information from CRA concerning the annual remuneration of the top 10 highest remunerated radio presenters across all of CRA's members in FYs 2022/2023, 2021/2022 and 2020/2023. Following objection by CRA, PPCA submits that it narrowed the range of this category in an attempt to reach a compromise, and to try and reduce the purported burden on CRA and its members (without conceding that any such burden arose). 16 CRA objects to the provision of the information sought in disputed Factual Category 4 primarily on the basis that the Tribunal lacks the power to compel CRA to answer the disputed factual request, which it submits is akin to an interrogatory. 17 CRA submits that the information sought in disputed Factual Category 4 is information not in the possession of CRA and, in any event, that information is irrelevant to the Reference. The factual material sought by PPCA is plainly not information in the possession of CRA. CRA is an organisation representing radio broadcasters: it does not operate radio stations and engage radio presenters. CRA submits that PPCA can only obtain the information it seeks by summonsing the non-party radio broadcasters directly.

3. LEGISLATION 18 The Tribunal has power under s 167(3) of the Copyright Act 1968 (Cth) to compel production of specific documents: 167 Power to take evidence on oath (1) The Tribunal may take evidence on oath or affirmation, and for that purpose a member may administer an oath or affirmation. (2) A member or the Registrar may summon a person to appear before the Tribunal to give evidence. (3) A member or the Registrar may summon a person to produce specified documents or articles to the Tribunal by producing the documents or articles to a specified person at a specified time at a specified place. 19 Further, s 164 of the Act provides that: 164 Procedure In proceedings before the Tribunal: (a) the procedure of the Tribunal is, subject to this Act and the regulations, within the discretion of the Tribunal; (b) the Tribunal is not bound by the rules of evidence; and (c) the proceedings shall be conducted with as little formality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit.

4. PRINCIPLES 20 The principles regarding document production concerning a determination of a Reference under s 154 of the Act have been helpfully set out by Perram DP (as his Honour then was) in Reference by APRA AMCOS (Summonses) (2022) 173 IPR 253 at [2], [4]-[9]: [2] The present proceeding is a determination of a reference under s 154 of the Copyright Act 1968 (Cth) ('the Act'). Section 154(4) of the Act relevantly provides: (4) The Tribunal shall consider a scheme referred under this section and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, confirming or varying the scheme or substituting for the scheme another scheme proposed by one of the parties, as the Tribunal considers reasonable in the circumstances. … [4] In exercising the power under s 154(4), the Tribunal is not sitting as a court. It is sitting as a price fixing tribunal which produces a determination which is quasi-legislative in nature. There are no pleadings and no formally defined issues. Whilst the Tribunal must hear the parties on their cases and afford them procedural fairness, it is not bound by the cases which they put. So much is inherent in the power of the Tribunal to vary a scheme. It is open to the Tribunal, so long as it affords the parties procedural fairness, to do something quite different to what they propose. It also within its power to adopt a scheme but for different reasons to those which are advanced in its support. For example, the Tribunal might, in appropriate cases, consider the economic analysis to be largely a thought experiment underpinned by no real data and to conclude instead that some other, more transparent, method of arriving at a price was warranted. [5] The power to require the production of documents is contained in s 167(3) of the Act: (3) A member or the Registrar may summon a person to produce specified documents or articles to the Tribunal by producing the documents or articles to a specified person at a specified time at a specified place. [6] Plainly, this power is not at large. It may be exercised only if it may be seen as having a proximate connection with the exercise of the power in s 154(4). In deciding whether a document sought by a summons has a sufficiently proximate connection with the exercise of the power in s 154(4), the concept of relevance is a useful one. However, in the determination of what is relevant for the purposes of 154(4), two considerations should be borne in mind. [7] First, in a reference proceeding such as the present, it is not the case as I have just explained that the perceived issues between the parties exclusively define the scope of what is relevant to the exercise of the power in s 154(4). So much flows from the fact the Tribunal is entitled to reject the pricing methodologies put forward by them subject only to the requirements of procedural fairness. [8] Secondly, the question of what is relevant to the determination of the reference is likely to be affected by the stage to which the proceedings have progressed. As the matter gets closer to a hearing, there will be an increased focus on the nature of the dispute between the parties. At the outset, however, it will generally be more difficult to be dogmatic about what is relevant and what is not. The fact that the relevance inquiry tends to narrow over time is a well-known phenomenon in ordinary civil litigation and has frequently been remarked upon in the context of attempts to set aside subpoenas: see Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 at [23] per Wigney J. [9] The combination of these two matters together widens further the caution with which the Tribunal should approach relevance debates in a context such as the present. It will rarely be likely at this stage of the proceedings that it will be appropriate to reject the issue of a summons which seeks the production of documents on a rigid view of what must be relevant or irrelevant… (Emphasis added.)

5. PRODUCTION OF INFORMATION BY CRA

5.1 Submissions 21 PPCA submits that s 167(3) together with s 164 empowers the Tribunal to compel document production in response to disputed Factual Category 4. 22 PPCA contends that nothing in the Act or the regulations precludes the Tribunal from requiring CRA to provide the information sought by way of disputed Factual Category 4. PPCA contends that requiring CRA to provide the information in disputed Factual Category 4 would be the most efficient and cost-effective means of obtaining the information. In the absence of express indication to the contrary, PPCA submits that the power afforded by s 164(a) to control its procedures is broad enough to permit the Tribunal to make such an order. 23 PPCA further argues that this construction is also consistent with s 164(c). The purpose of document production pursuant to the Factual Categories is to avoid time and expense to be spent on formal summonses addressed to non-parties. As the representative of the relevant three radio broadcasters in this Reference, it submits that CRA is in a position to obtain such information efficiently and cost effectively without formal summonses being required. 24 CRA submits that the Tribunal has a specific power to compel the production of specific documents pursuant to s 167(3). According to CRA, the Tribunal does not have the power to compel a party to a reference to provide information, particularly information not in its possession, rather than specific documents, nor does the Tribunal have the power to compel a party to create documents for the purposes of then producing them. 25 CRA maintains there is no power conferred on the Tribunal to which the creation of documents, or administration of interrogatories, is incidental and argues that if s 164 conferred a general power on the Tribunal to compel the parties to produce any document or answer any request, s 167(3) would be wholly redundant.

5.2 Consideration 26 The Tribunal's power under s 164, in matters of procedure, is broad and unfettered, save as to the Act and the regulations. That power is complemented by s 167(3), which expressly enables the Tribunal to summon a person to produce specified documents or articles: Reference by the Phonographic Performance Company of Australia Ltd (ACN 000 680 704) (2009) 84 IPR 393 (Reference by PPCA) at [8] (per Emmett P). 27 In Reference by PPCA, Emmett P observed at [10] that the Tribunal's powers to order persons who procure the issue summonses to bear the costs and expenses incurred by persons in complying with them are within the scope of the Tribunal's power to determine its procedure under s 164. The power of the Tribunal to order a party to pay the costs of compliance with a summons is to be implied from or incidental to, the power of the Tribunal to summon persons to appear before it and to produce documents under s 167(3): see Reference by APRA AMCOS at [16]-[18] (per Perram DP). 28 Whilst the power of the Tribunal under s 164 in matters of procedure is broad and unfettered, the exercise of that power is subject to the Act and the regulations. The Tribunal is given the power to summon a person to produce specific documents to the Tribunal in s 167(3). 29 I do not accept that the Tribunal's broad powers to control its own procedure extends to compelling a party to the Reference to first collect, and then provide, information not already in its possession. This strays beyond the Tribunal's power in matters of procedure under s 164 and matters implied or incidental to that power. The compulsion of a party to provide information outside its possession exceeds the Tribunal's power to require the production of specific documents under s 167(3). I will not make an order requiring CRA to provide the information sought in disputed Factual Category 4. 30 I now turn to consider whether to issue the three summonses sought by PPCA. CRA's principal objection to the issue of these summonses is one of relevance.

6. PROPOSED SUMMONSES

6.1 Relevance 31 As noted above, PPCA seeks information concerning the annual remuneration of the top three highest remunerated radio presenters from ARN, Nova and SCA in FY 2022/2023. PPCA submits that the information sought is confined, readily available (PPCA gave the example of one high profile presenter remuneration package being reported in the media) and relevant to the issues in dispute. 32 In its January submissions, PPCA clarified that the inclusion of West Coast Radio in disputed Factual Category 4 was inadvertent and confirmed that it only sought the requested information in relation to ARN, Nova and SCA. 33 PPCA contends that the information sought is relevant to the issues in dispute in this Reference, which concerns the remuneration payable to sound recording copyright owners for the exercise of the broadcast right in sound recordings. PPCA submits that what broadcasters pay for other inputs of a radio programme, including its radio presenters, is a factor that the Tribunal is entitled to take into account when assessing the reasonableness of the remuneration payable for other inputs, namely the music in sound recordings. 34 PPCA maintains that ARN, Nova and SCA were selected on the basis that it understands them to be the largest three radio groups in Australia, consistent with the fact that these radio groups' stations are among the highest performing stations according to recent GfK surveys published on CRA's website at the URL <https://www.commercialradio.com.au/Radio-Surveys>. PPCA expects that stations from these radio groups will likely fall within the Representative Sample Stations, as defined in the agreed Factual Categories sought from CRA: Factual Category 6 – Listenership data – DAB+ … Representative Sample of Stations For each of paragraphs 2 (Sample CRA Members Revenue), 5 (Listenership data – AM FM) and 6 (Listenership data – DAB+), PPCA requests that CRA include information in relation to the following stations, to be selected based on the first survey period in each of the calendar years, 2004 (excluding DAB+), 2010, 2019, 2022 and 2023: 1. Top 3 stations by Share % of commercial listening from each of the 5 capital cities (Sydney, Melbourne, Brisbane, Adelaide, Perth) (15 total); 2. Top 2 stations by Share % of commercial listening from each of the major regional markets (Canberra, Newcastle and Gold Coast) (6 total); and 3. Top 5 DAB+ stations by cumulative audience of commercial listening (nationally) (5 total), (Total representative sample size = 26 stations). (Share % has the meaning given by the official radio audience measurement service provider at the time of the relevant survey(s)). 35 PPCA expects that the talent remuneration information sought from ARN, Nova and SCA will provide an indication of what the top three radio groups are prepared to pay its radio presenters, which is a factor that the Tribunal is entitled to take into account when assessing the reasonableness of the licence fee for sound recordings to be determined under this Reference. 36 PPCA seeks orders that CRA bear any costs associated with production of documents pursuant to the three summonses. 37 CRA contends that the information sought by PPCA is irrelevant to the proceedings. CRA submits that the amount which three of CRA's members pay a handful of radio presenters cannot sensibly have any bearing upon the appropriate fee for all commercial radio stations to pay for sound recordings within PPCA's repertoire.

6.2 Consideration 38 This Reference is at an early stage. The parties have exchanged position papers and agreed some categories of documents to exchange. 39 I note the caution given by Perram DP in Reference by APRA AMCOS at [8] that it will generally be more difficult to be dogmatic about what is relevant to the determination of the reference at an early stage of the proceeding. As the matter gets closer to a hearing, there will be an increased focus on the nature of the dispute between the parties, and a corresponding narrowing of the relevance enquiry. 40 I consider that PPCA has demonstrated that the information sought in the three summonses may be relevant to the Reference. This Tribunal may be assisted by information regarding talent remuneration when assessing the reasonableness of the licence fee to be determined under this Reference. Given the stage at which this Reference currently finds itself, the level of relevance established is sufficient for me to issue the three summonses sought. 41 Given my conclusion that the Tribunal lacks the power to compel CRA to provide the information sought in disputed Factual Category 4, I do not consider that it is appropriate to order that CRA bear any costs associated with the production of documents in response to the three summonses.

7. CONCLUSION 42 Accordingly, I will issue the three summonses sought by PPCA. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe (Deputy President).

Associate: Dated: 26 March 2024