I Am Australian is one of the most recognisable Australian songs of all time. Co-written by Bruce Woodley of The Seekers, the song has long been a staple of major Australian sporting events, including the Sydney Olympics. According to a survey of the general public in New South Wales and Victoria, when just a short segment of the song was played, 97 per cent of the general public and 100 per cent of 4 to 12 year olds said that they recognised the song.
Recently, the song has again found itself in the spotlight when the Commonwealth Government commissioned the creation of a recording of the song that was used without the appropriate licence on a video that was played at citizenship ceremonies. The Copyright Tribunal has ordered that the Government pay $150,000 to the copyright owner for its use of the song – some 50 times more than the Government originally paid for the licence to perform and broadcast the song! Music licensing can be a complicated business. Here's what happened.
In December 2008, the Department of Immigration and Border Protection commissioned the production of an 'Australian citizenship video montage' for use in citizenship ceremonies. The Commonwealth paid $2,954.20 for certain licences through APRA AMCOS (the organisation that collects royalties for music owners that are derived from the use of a song's composition and lyrics, as distinct from the actual recording of a song) to use I Am Australian. However, those licences did not include the 'synchronisation right' in the song, which her Honour summarised as 'the right to reproduce and use the lyrics on the sound-track to a cinematograph film or other audio visual presentation'. In fact, APRA AMCOS did not have the right to grant a licence for such use in the first place.
Copies of the DVD were distributed to around 565 local councils for use in citizenship ceremonies and special events. In 2012, the Department became aware of a complaint by Mr Woodley of the use of the song and became concerned that appropriate licences may not have been obtained. The Department wrote to all of the local councils and asked them to cease using the DVD.
After some negotiation, the Department and Mr Woodley were unable to agree appropriate terms of compensation. Mr Woodley then applied for the fixing of terms for the past use of the song under s183(5) of the Copyright Act 1968 (Cth) (the Act). The matter came before Justice Bennett in the Copyright Tribunal in July 2014.
Section 183 – Commonwealth exception to copyright infringement
The owner of copyright has the exclusive right to reproduce, publish, perform, communicate or adapt their work, or authorise another person to do so. However, the Commonwealth does not infringe copyright if the acts are done for the services of the Commonwealth – but it must agree terms for that use with the copyright owner. If the Commonwealth and the copyright owner cannot agree the terms on which the work may be used (including any compensation to be paid to the copyright owner), the Copyright Tribunal has jurisdiction to fix the terms under s183(5) of the Act. Section 183 cases do not come along very often and Justice Bennett commented that the limited case law did not provide much guidance on how to calculate the appropriate compensation.
It was not in dispute between the parties that the reproduction of the song was done for the services of the Commonwealth. As a result, the relevant issue for the Tribunal was to determine on what terms Mr Woodley and Pocketful of Tunes should be compensated for the use of the song on the DVD.
The principles to be applied in assessing compensation under s183 are not the same as those to be applied in determining damages for copyright infringement. The determination is of the value of the right that has been exercised by the Commonwealth, and not the loss suffered by the copyright owner.
This case differs from another iconic Australian copyright dispute between the copyright owners of Kookaburra Sits in the Old Gum Tree and Men at Work, the writers of Down Under. In that case, the copyright owners of the Kookaburra song successfully sued Men at Work for copyright infringement on the basis that the flute riff from Down Under was a substantial reproduction of the Kookaburra song. TheKookaburra owners were awarded 5 per cent of royalties backdated for eight years.
In the present case, the parties put forward evidence as to the assessment of the appropriate compensation for use of the synchronisation right. This included:
- A number of other licences Mr Woodley had granted to third parties (including a licence to Brisbane City Council);
- The Department's budget for the DVD; and
- Estimates of when and where the DVD was played.
Mr Woodley and Pocketful of Tunes contended that the appropriate fee was around $226,000 per annum, while the Commonwealth's calculations led to a figure of approximately $36,000 per annum. The rather complicated calculation used by the Tribunal – broadly, using the Brisbane council licence as a base, multiplying it to account for the population size of Australia and adding some other factors - led to an award of $149,743.34.
Copyright is often described as a 'bundle of rights' and this case is a good example of where a 'bundle of' licences was required. This situation is not uncommon, and music users may often be caught out where they haven’t obtained the right licence(s). Relevantly, these licences may be controlled by different licensing bodies. For instance, the right to play the original recording of Mr Woodley's song at a citizenship ceremony would typically require a licence from PPCA (the organisation that grants licences for the broadcast and public performance of an original musicalrecording) as well as a licence from APRA AMCOS. If the Government had wanted to sell recordings of the song they would have needed a different licence again.
It's also important to remember that licensing bodies such as APRA AMCOS and PPCA may not be entitled to grant licences for every possible use of a particular song. In this case APRA AMCOS wasn't authorised to grant synchronisation licences. It is not uncommon for artists to reserve to themselves (or the music publishing companies that represent them), the right to grant approvals for synchronisation uses of their songs. Synchronisation rights can be hugely valuable, particularly where the song may be used in a film or advertisement, so artists often seek to avoid a situation where these rights are being negotiated by licensing bodies over which they have no control. Equally, it can be important for artists that their work not be affiliated with a film or advertisement that doesn't align with their profile.
As the Government discovered, it pays to ensure that the right licences are in place before the use is made.