ACCC allows PPCA's collective licensing arrangements for rights in sound recordings
The Australian Competition and Consumer Commission has re-authorised* the Phonographic Performance Company of Australia Limited's collective licensing arrangements** for the public performance or broadcast of sound recordings and music videos subject to a number of conditions.
"The ACCC considers that the conditions are necessary to ensure that PPCA's collective licensing arrangements result in a net public benefit," ACCC Chairman, Mr Graeme Samuel, said.
PPCA is a copyright collecting society which represents the interests of record companies and Australian recording artists. Under PPCA's collective licensing arrangements, owners of sound recordings grant PPCA a non-exclusive right to license the public performance and transmission rights of their sound recordings. The four major record companies in Australia - Sony BMG, EMI, Universal and Warner are licensors under PPCA's arrangements.
"The ACCC accepts that PPCA's collective licensing arrangements will result in public benefits through administrative, monitoring and negotiation cost savings for both copyright owners and users. The arrangements also facilitate compliance with copyright law and provide a convenient means to both record companies and users to access a range of sound recordings.
"While blanket licensing can be beneficial to both copyright users and owners, it allows owners of sound recordings to pool their rights and removes some of the competitive pressures that would exist if copyright owners competed individually to license their rights.
"While the Copyright Tribunal of Australia has a role in looking at licence fees, the ACCC considers the arrangements can create scope for PPCA to exercise market power in the setting of licence fees and conditions because parties wishing to use copyright sound recordings have limited, if any, alternatives.
"Among other things, the ACCC has imposed a condition requiring PPCA to make publicly available a list of sound recordings used in a distribution period identifying which sound recordings it distributed licence fees for, and which sound recordings it did not distribute licence fees for.
"The ACCC considers that such a list would allow users to better appreciate which sound recordings are covered by PPCA's blanket licence and assist users in considering whether directly dealing with individual copyright owners is a viable option for their licensing needs.
"The ACCC notes that this list is not, and should not be relied upon as, a list of unprotected recordings. The purpose of the list is to provide greater transparency about PPCA's blanket licence and to give users a starting point to begin their own investigations to determine the status of a particular recording.
"The ACCC does not consider that producing such a list would be overly burdensome given that PPCA currently undertakes this assessment each year for the purposes of distributing licence fees to copyright owners."
The other conditions of authorisation require:
alternative dispute resolution procedures to be specifically included in PPCA's Complaints Handling and Dispute Resolution Policy
each record company to independently develop guidelines outlining the circumstances in which it would consider entering into direct licenses
written notice to be provided to licensees of proposed fee increases or other material changes to blanket licences.
The ACCC has re-authorised PPCA's collective licensing arrangements until 31 March 2011. The ACCC considers that a limited period of time for authorisation provides another check on PPCA's ability to exercise its market power, and it will give the ACCC an opportunity to examine the operation of the conditions of authorisation.
The ACCC's final determination will be available from the ACCC website.
*Authorisation provides immunity from court action for conduct that might otherwise raise concerns under the competition provisions of the Trade Practices Act 1974. Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment. The ACCC conducts a comprehensive public consultation process and issues a draft determination before making a decision to grant or deny authorisation.
** PPCA's arrangements were first authorised indefinitely in 1985. Following ACCC interest in reviewing the 1985 authorisation, PPCA submitted its arrangements covering input licences, output licences, license out arrangements and distribution arrangements for re-authorisation.
