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Performing Rights - Report of Royal Commissioner (Mr. Justice Owen)


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II :I

1163

1932-33.

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA.

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REPORT 011 THE

ROYAL COMMISSION ON

PERFORMING RIGHTS.

COMMISSIONER':

THE HONORABLE MR. JUSTICE OWEN, C.B.E., A judge of the Supreme Court of New South Wales.

Presented by Command; ordered to be printed, 24th May, 1933.

[Oolt of Paper.-Preparation, not given; 840 coplee; approximate coet of printing and publillblng, £62.]

Printed and Published ior the GOVERNMENT of the COYYONWEALTH of AUSTRALIA by L. F. JoHNSTON, Commonwealth Government Printer, Ca.nberra.

No. 149.-F.1566.-PmoE 2s. 8n.

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TABLE OF CONTENTS.

PART I.-INTRODUCTION

PART H.-THE AusTRALASIAN PERFORMING RIGHT AssociATION LIMITED

(a) Performing Rights (b) Distribution of Monies Collected

(c) Expenses of Collection and Distribution

(d) Groundless Threats of Legal Proceedings (e) Security

{f) Returns of Music Performed (g) Re-arrangements and Adaptions .. (h) Term of Licence or Agreement (i) Lists of Works'Controlled

(j) Registration (k) Relaying (l) Re-diffusion

(m) Claims by Other Authors (n) Report of Royal Commission on Wireless .. (o) Relations with New Zealand (p) New Zealand Copyright (Temporary) Amendment Act 1928

(q) Report of S. G. Raymond, K.C. (New Zealand)

(r) Select Committee (England) Report 1930 (s) Generally

PART IlL-BROADCASTING IN AusTRALIA

PART IV.-EFFECT oF BRoADCASTING oN SALES oF MusiC AND RECORDS

PART V.-THE NATIONAL BROADCASTING STATIONS

(a) Charges made to the Australian Broadcasting Company Limited (b) Offer made to the Australian Broadcasting Commission (c) Offer made by the Australian Broadcasting Commission

PART VL-THE "B" CLASS BROADCASTING STATIONS

(a) Connexion with Business Interests and Organizations (b) Trading Results (c) Agreements for 1931 and 1932

(d) "Per Item" Charges (e) Queensland and Other "B" Class Stations

(f) Proposals for Subsidy .. (g) Are " B " Class Stations a Public Utility

PART VII.-MISCELLANEous UsERs oF Music­

(a) Steamship Owners (b) Catering Industries (c) Cinematograph Exhibitors

(d) The Literary Institute Society of New South Wales (e) Municipal and Shire Associations .. {f) Returned Sailors and Soldiers' Imperial League (g) Retail Traders

(h) Religious and Charitable Bodies ..

(i) Individuals

PART VIII.-THE CANADIAN CoPYRIGHT (AMENDMENT) AcT 1931

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TABLE OF CONTENTS--continued.

PART IX.-TliE AssociATED REcoRD MANUFACTURERs ­

(a) Generally

(b) The Case for the Manufacturers

(c) The Ban on Broadcasting

(d) ConcerJ:ed Action

(e) The Australian Broadcasting Commission ..

(/) The "B " Class Stations (g) Are the Manufacturers a Monopoly ?

(h) Advertisement of Records by Broadcasting (i) Announcing of Records .. (j) Claim to Performing Rights (k) Value of the Manufacturers' Records

(l) Revocation of Patents . .. (m) Records Used in. Public Generally (n) Causes of Disputes

PART X.-TRIBUNAL

JlART XL-CONCLUSIONS

PART

(a) The Interests of the Public

(b) Reconsideration of Performing Rights

{c) The Revised Berne Convention

(d) The Rome Convention ..

(e) General Effect of Conventions

(f) Imperial Copyright Convention 1910

PART XIII.-PoWER OF PARLIAMENT

PART XIV.-LEGJSLATION ..

PART XV.-REcoMMENDATIONS

APPENDIX A.-LIST OF WITNESSES .

Al"i'ENDIX B.-LIST OF EXHIBITS ..

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REPORT OF THE COMMISSIONER.

To His Excellency the Right Honorable S!R IsAAC ALFRED IsAAcs, a Member of His Honorable. Priv!j Council, Kf!ight Grand Cross of the Most

Order of Samt M and George, Governor-General and

Commander-in-Chief in and over the Commonwealth of Australia.

MAY IT PLEASE YouR EXCELLENCY:

I, the Commissioner appointed by Royal Letters Patent, dated respectively the nineteenth day of September, 1932, and the tenth day of November, 1932, to inquire into and report upon-(a) any questions that have arisen or may arise between persons interested in right in copyright works and persons interested or concerned in

the performance of such works whether as performers or as persons authorizing or controlling the performance, or as persons on whose premises the work is performed, or otherwise ; and (b) the rates, methods and conditions of payment to the owners of the copyright

in musical and other works by the persons aforesaid for the right to perform such works in public; and (c) any questions that have arisen or may arise between persons interested in the manufacture, use or sale of any mechanical contrivances by means of which

any musical' or other work may be mechanically performed, whether so interested under or by virtue of the Copyright Act 1912 or otherwise, and persons interested or concerned in using such contrivances for the purpose of mechanically performing such musical or other works in public, whether

as persons authorizing or controlling such performance, or as persons on whose premises such performance takes. place, or otherwise ; and (d) the rates, methods and conditions of payment (if any) to the persons interested as aforesaid in the manufacture, use or sale of such contrivances by the persons

interested or concerned as aforesaid in using such contrivances for -the pll!pose of mechanically performing such musical or other works in public ; and to make recommendations with respect to all the matters aforesaid, have the honour to report as follows:-

PART I.-INTRODUCTION.

The Commission.held its :first meeting in Sydney on the 23rd September, 1932, for the purpose of considering the necessary arrangements for the conduct of the inquiries, and the following appeared or were represented at such meeting :-The Honorable J. H. Keating as Counsel to assist the Commission £tnd to represent the general public, The Australasian Performing

Right Association Limited, The Australian Broadcasting Commission, The Australian Federation of Broadcasting Stations, The Amusement Defence Association, Hoyt's Theatres Limited, The Motion Pictures Exhibitors' Association, The Retail Traders' Association of New South Wales, and Mr. L. J. Pilkington, Solicitor for the Gramophone Company Limited, Columbia Graphophone

(Australia) Limited and the Parlophone Company Limited (to watch the interests of these Companies). These Companies subsequently appeared by Counsel and took an active part in the inquiries. ·

At later stages the following additional associations, societies, or bodies were represented :­ The Cinematograph Exhibitors' Association (embracing Victoria, South Australia, Western Australia and Tasmania), The South Australian Motion Picture Exhibitors' Association, French Limited (London), The Returned Sailors' and Soldiers' Imperial League of New South Wales,

The Australasian Steamship Owners' Federation, The Literary Institute Co-operative Society of New South Wales Limited, The Celebrity Pictures Proprietary Limited, The Local Government Association of New South Wales, The Shires Association of New South Wales, and the Victorian Chamber of Catering Industries. .

J. C. Williamson Limited were represented before the Commission on different occasions, but took no active part in the inquiries and offered no evidence or information to the Commission. During the course of the inquiries. members of were interested in the

questions before the Commission gave evidence or supphed mformat10n.

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. It. was regarded as advisable, and found to be satisfactory, that as much evidence and mformat10n as possible should be placed before the Commission in Sydney and in Melbourne, and all necessary arrangements were made to suit the convenience of parties and witnesses whose place of business was or who resided in other parts of the Commonwealth.

At the outset the Commission o:ffered to sit in any of the State Capitals for the purpose of receiving evidence or information, but, with the exception of suggestions made by the Municipal Association of Tasmania and a Listeners' League in the same State, no request was made that sittings should take place in any capital other than Syd.ney and Melbourne. The ·Tasmanian bodies were informed of the sittings in Melbourne and their submissions were there

placed before the Commission. .

On the 31st August, 1932, when announcing in Parliament the appointment of this Commission, and on subsequent occasions in Parliament, the Attorney-General invited the co-operation of all interested in the subject matters of this Commission. This Commission has frequently invited the same co-operation and stated its desire to obtain from any reliable source relevant evidence or information. The scope, the objects, and the proceedings of the Commission have been frequently and widely advertised and reported in the Press throughout the Commonwealth and, to some extent, overseas. It is clear, that every association, society, body, and person has had an opportunity of placing before this Commission material evidence, information, and suggestions.

The Commission has held 67 sittings, 60 witnesses have given evidence, and 169 exhibits have been placed before the Commission, and the proceedings of the Commission have, with the exception of the Christmas holidays, January and part of February, extended from 23rd September, 1932, to 20th March, 1933. .

The terms of the Commission are wide enough to include inquiry into and report upon questions which have arisen or are likely to arise relating to works, the owners of copyright in such works, and those who perform or wish to perform in public such works, but no material evidence has been placed before nor has any suggestion been made to the

Commission that important questions of this kind have arisen or are likely to arise. Companies or firms, such as J. C. Williamson Limited, claim to be the owner of the copyright or the licensee or representative of such owner in some dramatico-musical works (such, for instance, as the Gilbert and Sullivan operas) and there is some evidence of apparently unjustifiable claims made by such firms or misunderstandings as to the rights and interests of such :firms. Such evidence, however, is either unsatisfactory or too vague to act upon, and there is nothing before the Commission which calls for an answer by any of these firms or for comment by the Commission.

Any disputes which have arisen or are likely to take place in connexion with dramatico­ musical works appear, so far as this Commission is aware, to be capable of -reasonable adjustment by agreement between the parties interested. · Substantial questions have arisen or are likely to arise relating to musical works other than dramatico-musical works, and it is to musical works as so defined that this Report refers.

Difficulties and disputes have arisen and are likely to arise concerning such musical works between the Australasian Performing Right Association Limited (which claims to represent and control between 80 per cent. and 90 per cent. of such works) and any similar association which may be formed on the one hand and those who perform or desire to perform such works in public

on the other. Important questions have also arisen and are likely to arise which have their origin in the claims made and the rights and interests insisted upon by three Companies which manufacture records in Australia, the Gramophone Company Limited, the C

Throughout the inquiries the Commission has been assisted by the by all associations, societies, firms persons before the Comzmss10n. information no matter how confidential, was readily supphed, and any requests for details or assistance .;as willingly complied with. Further, there was a . marked desire on all sides to understand and make allowances for " the other man's " point of view and difficulties. Misunderstandings and distrust have, to an extent, been minimised, if not wholly removed,

and, with them, much hostility has disappeared or diminished. There is hope that one of the results of this Commission may be to bring a understandmg the

different interests and, in part at least, compose the differences whiCh at present eXISt.

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evidence before this and the inferences to be drawn make 1.t plain that

the at large, or, at any rate, a considerable portion of the public, is interested in

hari:?-omous being maintained between who. I?erform or wish to perform in public music of a satisfactory nature and those who are m a pos1t10n to supply such music. . During the whole of the sittings of this Commission, both the Australasian Performing Right Association and the record manufacturers invited inquiry into their business, their methods, and their relations with those who ·wish to perform music in public. From each of them this Commission has at all times received the utmost assistance, information asked for

(ofteD; of a confidential nature) was promptlysupplie

PART ll.-THE AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LIMITED. This Association was incorporated on 4th January, 1926, under the Companies Act (New South Wales) 1899 as a company limited by guarantee and not having a capital divided into shares. The guarantee is limited to £10 per member in the event of liquidation and, otherwise, the Association has practically no assets available to creditors except business premises, office

furniture, &c. All monies from time to time in .the possession or under the control of the Association belong to authors, composers or publishers or other persons, subject to deduction for the expenses incurred in the collection of such monies. · The original members of the Association consisted of eight companies or firms carrying

on business in Australia as music importers or publishers, and Chappell and Company Limited (London), music publishers. ·. ·

The present members (see Exhibit 12) consist of the same original members (except that the firm of W. Bassett and Company, music importers of Melbourne, has been substituted for one of the original music importers and music publishers), the Performing Right Society Limited (England), three New Zealand firms of music importers and publishers, and J. C.

Williamson Limited. There are thus fourteen members of the Association, and the membership does not include any author or composer. Although no provision in that behalf has been made in the memorandum or articles of association, the Association has 62 associate members, consisting of Australian composers

and of six New Zealand firms or associations for which this Association collects fees. These 'i associate members are not entitled to take part in the control or man11gement of the AssociMion. Except so far as the. Performing Right Society (England) may be said torepresent authors and composers, no author or composer is a full member of the Australian Association, and the business and operations of this Association are controlled by the present members consisting

of firms interested in the music business, the representative of the Performing Right Society (England) and a Company interested in theatrical ·

The most important member of the Australasian Performing Right Association is the Performing Right Society Limited (England). This Society has a representative on the Board of Directors of the Australian Association. From a memorandum (Exhibit 5) prepared in 1930 by the Performing Right Society

(England) and from evidence before the present Commission, it appears (a) The business of that Society is carried on subject to the directions of a board of 24 directors comprising an equal number of composers and authors on the one hand and music publishers on the other.

(b) In addition to the repertoire of copyright -yested t.he Society by its own . members, the Society also represents m Bntish terntory under contracts of affiliation the repertoires of similar esta?lished by authors

and publishers in France, Germany, Austna, Umted States of Ita!y, Spain, Denmark, Sweden, Hung11ry, Poland, Roumama,

Switzerland, &c. The aggregate number of foreign composers, authors and music publishers, members of these 11ffiliated societies, who are by the Performing Right Society is very large and represents an mcalculable number of musical works . . (c) Under these contracts of affiliation, the of th.e .have their rights

·protected in the territories of the respectnr.e foreigi?- societles and. fees collected are remitted to the Performing Right Society and are d1stnbuted amongst its members according to by.the affiliated. societies.

Similarly the fees collected ?Y the for fore1gn

remitted to the respective foreign soCietws for distnbutwn amongst their

members. · ·

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(d) The operates in the of South through its own agents

· and m the Insh Free State. It IS represented m. Australia and New Zealand by Pe!forming. Right Association and }n Canada by . the

Canadian Performmg Right Society. Fees are collected m these Domimons both on behalf of the Society's own members and of the members of the affiliated societies . . . By agreement (Exhibit 6) dated the 11th January, 1926, the Performing Right SoCiety and the Australasian Performing Right Association, it is provided:-

(1) That of the shall be a nominee of the ?e:forming Right

Society while such. Socmty remams a member of the Assoc1atwn. (2) That the Australasian Performing Right Association shall pay to the Performing Right Society 40 per cent. of its net revenue after deducting expenses. (3) That the Australasian· Performing Right Association shall send to_the Performing

Right Society details of the works in respect of which payment is made and the · number of performances of each wo:rk as far as the· circ111llstances will permit. · (4) That the Performing Right Society shall assign to the Australasian Performing Right Association the right of public performance in Australasia and New

Zealand of all musical· works vested or. to be vested in it. According to the evidence of Mr. Edwards,. the Secretary of .the Australian Association, the . 40 per cent. of net revenue referred to in this agreement is 40 per cent. of the :feve1nl,e collected from sources other than broadcasting, and the remaining 60 per cent. of such revenue distributed to other owners of copyright either directly or through the agents of such

owners in Australia. . ·

By assignments dated the 28th January, 1926, and the 24th Mar9h, 1927 (Exhibits 7 and 8), the .Pe:do:rming Right Society assigned to the Australasian Performing Right Association the Q£ performance in Australasia and New Zealand belonging to or thereafter acquired by

the Performing-Right Society. ·

. . The form of assignment (Exhibit 9) to be executed by Australian members of the Australian Associf!ltion (apparently including the associate members) provides for the assignment of the right of performance in Australasia and New Zealand then belonging to or thereafter to be acquired by the assigno:r and contains a covenant by the Australasian Performing Right .Assot:liation. to collect and pay to the assignor his share of all monies collected for public performance. · .

. In,.the United States of America there exists a somewhat similar society,._ the American f$ociety of Composers, Authors and Publishers which is not affiliated with the Performing Right (England) or any of the foreign or Dominion societies, but many of its members have

assigned their rights to or appointed as agents publishers in Australia who are members of the Australian Association. The American Society is not yet affiliated with the Australian. Association, but the latter has been approached by the American Society with that end in view. If such affiliation should take place, the repertoire of musical works now claimed by the Australian. Association will be

enormously increased. The Australasian Performing Right ''Association in its ''Case for Performing Right" (.Exhibit. 13) claims that it is essentially a collecting agency, representing an enormous number of authors, composers, and copyright owners throughout the world, and musical works within the of copyright numbering some 2,000,000.

. ... . According to figures supplied to this Qommission, the Performing Right Society (England) or by affiliation with the foreign . a membership of or represents over

29,000 f:tuthors, composers and publishers. (See Exhibit 10.) ' . . The Australian Association claims that the musical works within its repertoire include the best rn.usic which has been produced and which is protected by copyright. Among these musical are .. many works which had fallen into. the public domain and which by re-arrangement

or adaption have re-entered the field of copynght. •· · These claims made by the Performing Right and by

Association, taken as general statements, have not been senously bef?re .this The complaint of those who use or. desire to use the works said to be Within the controlled by the Australian Association is that they do not know and no satisfacto.ry means o[ ascertaining what authors are represented or 'Yhat works are Wlthm the by the .Association ; other they that they .have ne:ver been mformed

and cannot find out what musiCal works this AssoCiatiOn really controls. .

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It has been made cl:ar to tffi:s 9onn:n_ission that. the· Right Society

nor the Australian Assoc1at10n drrectly or mdirectly claliDS to control operas or

musiCal plays when performed in their entirety. They claim, however, rights as distinct from stage or dramatic rights, so far as conce!DS the p'erformance of instruinental e:x:cerpts from such works. . Neither the Performing Right Society (England) nor the Australian Association conducts

1ts business for profit. All monies collected are distributed after the necessary expenses are deducted and both bodies claim that the net monies so collected are finally distributed among those who, as owners of copyright or as principals, are entitled to the same. The necessity for the existence of such a bodyas the Performing Right Society (England)

and the Australian Association has on more than one occasion been recognized by the Courts, and the objects and purposes of such a body have been held to be in all respects legitimate. Under present conditions it is impossible for individual owners of copyrights to adequately protect their rights and interests throughout the world. ·

Further, the Courts have considered that it is in the interest of all those who use or desire musical works in public that societies or associations such as these should be established and accessible to such users, so long as their business and their powers are wisely and

farrly conducted and exercised. ·

Since its incorporation, the Australian Association has conducted its operations throughout the Commonwealth and the Dominion of New Zealand. .

PERFORMING RIGHTS.

Performing rights in musical works were recognized by British Law for many years prior to the Imperial Copyright Act 1911. The Commonwealth Copyright Act 1905 gave protecti()n to those rights and by the Commonwealth Copyright Act 1912 (embodying the Imperial Act) ''copyright)) is defined as meaning (inter alia) the sole right to perform a musical work.

It is common ground that, in Great Britain prior to the Imperial Act 1911, and in the Commonwealth until 1912, authors, composers and publishers mainly looked to the saleE? of sheet music to provide revenue and later to the royalties on records provided by Section 19 of the Imperial Act, such royalties to some extent compensating the owners of copyright for losses

on sales of sheet music occasioned by the increasing sales of records. It may be said, generally speaking, that performing right fees were not claimed in the Commonwealth in respect of musical works until after the incorporation of the Australasian Performing Right Association, and that the claim then made and subsequently continued was

and is due to a desire on the part of owners of copyright to obtain some ·compensation for the reduced sales of sheet music and records.

DISTRIBUTION OF MONEYS RECEIVED. This Commission illspected the offices of the Australian Association, examined the adopted, and was afforded · every opportunity of ascertaining how its operations are conducted and what steps are taken to secure a satisfactory distribution <;>f moneys collect:d. among authors, composers, publishers and others entitled to such moneys. Miss who lS m charge of

Programme Branch of the was and before the

and made it plain how ?arefully th.e ?f mus1c performed and the clmms of popynght were checked and verified; Exh1b1t 70 Illustrates the great care taken by the s

officers. ·

From her evidence and that of many Witnesses who use music in public, it is obvious that the Association does not and cannot obtain, with any degree of accuracy, information as to what items are performed, and that in many cases it is impossible to make an accurate distribution of the moneys collected. The whole of the moneys, less expenses, are, in

fact, distributed by the Association and every effort is made to ensure that the moneys reach those entitled to it. No author, composer, publisher or other owner of copyright has made any suggestion or complaint that the Association has failed .to account fairly and prope.rly for

and in the inquiries which have taken place m England, no such suggest1_on or complamt appears to have been made by any person claiming to be entitled to moneys collected or distributed by tll.e Performing Right Society-(England). . ·

. It appears from later portions of this Report why it is that an absolutely a.courate • distribution of moneys collected cannot be made.

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The inference to be drawn from the whole of the evidence is that authori! composers publishers and other owners of copyright appear to be satisfied with the methods adopted by the Australian Association and the Performing Right Society (England). In a large number of cases the AustralianAssociation pays to members who are publishers

and :n:usic firms. carrying on business in Australia money which it has collected for owners of copyr1ght whose mterests are represented by such publishers and firms, and they in turn: distribute such money among those entitled to it. Several of these publishers and :firms have disclosed to this Commission the methods adopted in making such distribution ; they appear to be

satisfactory and no complaints have reached this Commission. The owner of copyright makes his own arrangements with his publisher or one of these firms and those arrangements are apparently carried out. ·

· :Among all classes of users of music in public, there has been and still is a strong feeling that the fees·collected by the Australasian Performing Right Association are not or may not be distributed among the owners of copyright for whom the fees are collected. Practically all users admit that reasonable payment should be made for the music used and which is subject to copyright, but they have not and cannot obtain information as to whether or how the money paid are distributed.

· Probably ·the proceedings before this Commission and the explanation given by the Australasian Performing Right Association of its office details and methods of distribution will remove some of the distrust and uncertainty hitherto felt. It is natural that those who pay fees claimed by the Association on behalf of copyright owners should wish to be certain that the fees so paid reach the true owners and should press for· compulsory filing of detailed accounts of money received and distributed.

, The balance-sheets prepared annually by the Australasian Performing Right Association are not available to users of music, do not furnish details of the distribution of fees collected, and afiord no information as to how publisher members allocate the fees coming to them. It would. create a greater feeling of confidence among users of music in ·public, be of assistance to authors and composers, and be a useful check upon the Australasian Performing Right Association and its members if it were made compulsory to file annually, in some convenient centre in each State, detailed accounts of the fees received and distributed not only by the Australasian Performing Right Association, but by its members. The places and time at which and the form in which the accounts should be filed could be prescribed by regulation. Possibly, if legislation were enacted here, other countries might follow the example set by Australia and thereby make available information as to the ·distribution of fees remitted abroad.

EXPENSES OF ADMINISTRATION AND COLLECTION. One ground of complaint against the Australian Association is that .the ratio of expenses of collection and administration to the amounts collected for fees is excessively high-that, if these expenses were reduced, the Association could afiord to accept lower fees .from users of their music.

. The ratio appears to be about 10 per cent. in the case of broadcastingfees and about 33 per cent. of miscellaneous fees, the latter being collected from about 3,000 users of music. . The expenses of collecting the fees from broadcasting stations. do n?t to be when the immense amount of labour necessary for and the difficulties mmdental to

the division of fees collected are taken into consideration. , ·In comparison with. the Right Society (England), the ratio of expenses to fees collected from broadcasting for 1931 appears to be-Australasian. Performing Right Association-

Revenue, about £31,000. Expenses, 10 per cent. Performing Right Society­ . Revenue, about £65,000.

Expenses, 2. 78 per The musical items broadcashd in England number about 180,000 per annum; in Australia about 1,000,000, and the office expenses in Australia of tracing items and allocating fees are greatly increased by reason of the large number of items performed.. . · . . The expenses incurred in connexio?- with fees (that is, fees from sources

other than broadcasting) appear at first s1ght to be high, but the enormous. and settlement of Australia, the strong opposition to the legal daims of the the • Of collecting fees from users who have refused to pay, and the costs of mspect10n and .taxatiOn must be taken into consideration.

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The Australian Association placed the Commission its balance-sheets for the years 1926! 1927, 1928, 1930 .1931, aJ?-d offered to supply any detail or any information relatmg thereto which the Comnusswn requrred. In the particulars stated below "Miscellaneous Revenue" represents fees collected from users in public other than broadcasting stations:- . .

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I 1926. 1927. 1928. 1929. 1930. 1931.

£ 8. d. £ 8. d. £ £ £ £ ..

Gross Revenue from- -

" A" Stations .. . . 13,187 . 0 0 14,729 0 0 23,582 33,022 28,775 28,843

" B " Stations .. .. 4 18 0 99 17 0 259 --- 536 1,887 ' 2,506

Gross Miscellaneous Revenne .. 3,566 0 0 11,003 0 0 - 11,951 13,890 14,&79 . 18,562_

GROUNDLESS THREATS OF LEGAL PROCEEDINGS. Complaints have been made that, in many instances, the Australasian Performing Right has unfairly threatened users in public with litigation for alleged infringement of

1ts .nghts and thereby forced users to pay fees rather than incur the expense of contesting the clauns made upon them. There appears to be some justification for these complaints. ·. It is suggested that the Copyright Act should be amended to provide remedies for groundless threats of legal proceedings on t.he lines of Section 91A of the Patents Aet, and this Commission considers that legislation to that effect is reasonably necessary.

SECURITY.

It has already been pointed out that the Australasian Performing Right Association has little or no and it has been suggested, with some justification, that an Association with such valuable music in its control, such monopolistic powers, and so often in conflict with users of musip, should be compelled to provide some form of security to meet claims- _

(a) by authors, composers and publishers; · (b) for costs or money claimed by successful litigants; (c) under the indemnity granted in the licences issued by the Association; and (d) other money payable by the Association. ·

·with these suggestions this Commission agrees, but the form of security should not be such as would interfere with the Association's business and activities. Probably a bond or bonds in some such sum as £3,000 to be approved of by the Minister would be sufficient.

RETURNS OF MUSIC PERFORMED.

There is great force in the contention by the Australasian Performing Right Association that detailed returns of music performed are essential in order that a reasonably accmate distribution may be made of fees collected. Almost all the licences granted by the Australasian Performing Right Association require these returns to be made and a power to cancel the licence is reserved if the conditions are not

fulfilled. ·

Apart, however, from broadcasting, it is in. m.any instances for the t:ser public to make these returns. In some cases music IS played by the licensee

has no control over the performers, in others the performers themselves cannot or Will not supply the details ; in others the clerical work required would add excessively to costs of management, and, in cases. of re-diffusion by radio set, the owner of the premises cannot supply the required • details.

It may be that, if authors, COJ?posers and. publi.shers elect. act and. their interests protected by the Australasian Performmg Right AssoCiatiOn or similar societies, they must submit to the inconvenience and cannot insist on having these returns made by all users of their music.

RE-ARRANGEMENTS AND ADAPTIONS . • Throughout Australia there been and still is a strong feeling that the use of much of the-older and welllrnown music is denied to users by unfounded claims to copyright. Complaints have been freely voiced by \vitnesses before this Commission that the Australasian Performing

Right claims to coll:trol much . of this . old music, notwithstanding, as many users believe, the musiC has long been m the pubhc domam.

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The general public do not understand that for years. it has been settled law that an arrangement or adaption of music can be the subject of copyright. It is reasonably clear that this misunderstanding has been a cause of complaint against and hostility towards the Australasian Performing Right Association and its claims.

TERM OF LICENCE OR AGREEMENT. Every class of user in public of music, and particularly the broadcasting stations, complain that the Australasian Performing Right Association will only consent to grant a licence for a short term, generally twelve months, and that at the end of the term granted they are faced with the difficulty of negotiating for a fresh They urge that it is difficult to make satisfactory arrangements for carrying on their business or industry unless they are granted a licence for a reasonable term, say two or three years, and there is much to be s1.id in support of

these views. If a tribunal is to be appointed, it could decide what is, under the circumstances, a reasonable term to include in the various agreements or licences.

LISTS OF WORKS CONTROLLED.

The evidence establishes that the Australasian Performing Right Association endeavours to meet complaints and answer inquiries to the best of its ability and that its system, to an extent, is well devised and carried into effect. In the absence, however, of complete and lists of works controlled, it often takes a considerable time to furnish information to

a user and, in cases, the information supplied is incomplete. Both time and complete information may be of importance to the user of music or to the user who may have made himself liable for a performing fee. Practically all classes of users in public of musical works said to be controlled by the Australian Association demand tha't the filing of lists of such works should be made compulsory in order that it may be known what works are within the Association's repertoire ..

The principal objections raised by the Australasian Performing Right Association to any system whereby the Association should be compelled to file lists of the musical works it claims to control are-( a) that the compilation of lists would involve an immense amount of work and very

great expense which would have to be passed on to the users; (b) that it would take some years to prepare anything like complete lists; (c) that, without an index, lists would be useless and a satisfactory index would take a long time to prepare ; (d) that the lists would have to be frequently supplemented by adding new works

and deleting works which had ceased to be protected by copyright ; (e) that lists such as list "R" (Exhibit 11) are ·now made available to users and are reasonably sufficient. In answer to objections (a) to (d), it should be pointed out that theCanadian Performing Right Society is apparently complying with the requirements of the Canadian Oopyrigh;t (Amendment).Act 1931 which requires these lists. This Act is referred to later in this Report.

Through the courtesy of the of Canada, a copy of a !etter, dated. the

Jtine, 1931 (see page 1692 ofthe transcnpt of evidence), from the Canadian Perform.mg R1ght Society to the Commissioner of Patents, Ottawa, was placed before this Commission. In the letter the Society states that it claims to· control approximately 3,000,000 works, that it has .filed and is filing partial lists thereof and is arranging to supplement these partial lists with lists of

works in other sections of its repertoire. •. . In a cable dated the 20th October, 1932, from the Right Honorable S. M. Bruce, it is stated that a report on the Canadian Act was being sent by mail, but this report has not yet reached the hands of this Commission. It may be advisable to have further inquiries made as

to the effectiveness or otherwise of the Canadian Act. . The Secretary of the Australasian Performing Right Association in evidence that the Association has at its disposal sufficient material to enable complete hsts to be prepared and that it has certain lists available for users. List "R" (which is said to be typical of the lists available) terms itself " a" list of music publishers, members of or represented by the Australasian Performing Right Association, and of "a few" composers by the Association, and contains extracts from lists of members of affiliated foreign societies. No addresses are given.

It is obvious that List " R " and similar lists afford very limited information to a user of musical works. ·

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If the filing of lists were made compulsory, it is more than doubtful whether the Australasian Performing Right Association would include in them the enormous number ·of musical works it claims to control. Many, and probably a very large number, are out of date and not in public demand.

It is not .and, some it is in the o! the listening public

that the Australasian Performmg R1ght AssoClatwn or any other associatiOn which controls or claims to control so much of the music that the users desire to perform and the public wish to hear, should be compelled to furnish complete lists of what is within its repertoire or at any rate, lists of the works it seeks to protect. '

REGISTRATION.

A suggestion was made · that the Australasian Performing Right Association or any society should be compelled to register each work it cillims to control and mark each work

m such a way as to afford notice that it is protected by copyright. There are objections to this. In Great Britain, qua authors and composers, such a system has been discarded for years. It would involve a consiCI.erable increase of the work of the Copyright Office and it may be doubtful whether the registration fees would cover the

expense. It may be said to indirectly compel the author or composer to register and may, therefore, conflict with the International Conventions and possibly give rise to difficulties under the Imperial. Copyright Act. Finally it would probably be impossible for the Am;;tralasian Performing Right Association to comply with such a provision in the case of most of its repertoi1;e

and would, or might be, unfair to those whom the Aust-ralasian Performing Right Association represents. ·

This Commission does not recommend registration .on the lines suggested. Doubtless users in public of music experience great difficulty in ascertaining what is or what is not protected by copyright, but that difficulty has existed in Great Britain and Australia for many years under the law as it now stands.

RELAYING.

The Association seeks to charge a separate performing fee to all the broadcasting for relaying musical works and all broadcasters oppose such a charge. ·

Relaying as to the Commission appears to be effected as follows :-In the_ studio of a National Station (say 2FC) a musical work is performed and is received through the General Post Office or City South by other National Stations (e.g., 3LO andothers) and is by them J?Ut on the air. . The musical work is in almost every case broadcasted to its listeners by the· stat1on in which the studio is located, but the operation of relaying does not involve any repetition;

Relaying by" B" class stations is apparently effected in much the same way. The Australian Association claims that this constitutes a performance by the originating station and an additional performance by each of the relay stations. When the relay is made from a National Main Station to a National Regional Station (such as 2NC), no such claim is

made. The evidence shows that the British Broadcasting Commission pays to the Performing Right Society (England) no further charge for relaying through its relay or regional stations and, so far as this Commission can ascertain, in no country is relaying regarded as creating multiplicity

of audiences, or justifying a claim for an additional performing fee.

RE-DIFFUSION.

The Association also claims to be entitled to a performing fee for re-di:ffusion by a radio set and loud speaker or similar contrivances used in public whether the broadcaster be licensed or not to broadcast the musical work, and this claim is strongly objected to. If it be given effect to, such a claim must have far-reaching effects, give rise to.general

dissatisfaction, and, in cases, operate unjustly. As far as this Commission has been able to ascertain, there does not appear to be any official· report· of a decision by any Court within the Empire on the question whether re-di:ffusion does or does not constitute an infringement of the author's performing right. It is said that litigation is pending in Great Britain, in which this question has been raised, and in

the press of the 7th April, 1933, it is reported that, in the Performing SoCiety v. Bradford Brewery Company, re-di:ffusion by a loud speaker was held m England to infringe author's performing right. ·

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.From two num?ers of the Performing Right Society Gazette dated July, 1932, and January, 1933, 1t appears that m Italy, Roumania and Belgium it has been decided that, even where the broadcaster has been licensed by the author, re-di:ffusion constitutes an infringement of the author's performing right.

In the United States of ,America there appear to be two decisions (Buck v. Debaum, 40 Federal Reporter, Second Series, 734, and Buck v. Jewell, 76 American Law Reports, 1266), in which it was held that re-di:ffusion is not such an infrinD"ement provided the broadcaster be licensed by the author. .

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. In the Court of Appeal at Copenhagen (reported in the Radio Law Journal, April, 1931), 1t was apparently decided on the 20th January, 1930, that though broadcasting must be considered as a public performance, the reception of an entertainment by means of a receiving apparatus with the accessory of a loud speaker is not a new performance of the broadcast work,

the reception only represents one link in broadcasting, and that the author who permits

h1s work to be performed by radio·has had recourse to publicity and for him it must be all the same whether a large1 or a smaller audience listens by means of a receiving apparatus . . From these decisions, if .correctly reported, it seems doubtful whether re-di:ffusion is or is not a new performance and it appears desirable that Parliament should make the law clear.

CLAIMS BY OTHER AUTHORS.

Although mistakes have occurred and probably will occur in claims made by the Australasian Performing Right Association to protect particular items of music, they have been few and far between, and any instances were given of claims made by persons outside the Australasian Performing Right Association in respect of items of music which the Australasian

Performing Right Association claimed to protect.

REPORT OF THE ROYAL COMMISSION ON WIRELESS .. " ¥ In 1927 a Royal Commission on Wireless was appointed and furnished its report. This report which is dated the 14th July, 1927, deals (Part IV.) with Copyright and Performing Rights. . ·Some evidence was given before that Commission by representatives of the Australasian Performing Right Association Limited and of some of the broadcasting stations, including both " A " and " B " class. On such evidence as the Commission had before it, the Commission came to the conclusion that, in view of all the circumstances, the amount ofthe licence fees which ultimately reaches the hands of the Association was out of proportion to the service rendered or the value given by the or the author whom they represent, and was an

advantage that, in the majority of instances, was never contemplated as likely to belong to either the author or composer or the assignee of the copyright. The Commission also exp!essed the opinion that authors and composers derive considerable benefit from the broadcastmg of their works and that the publicity so given broadly counterbalances any loss on the sales of

sheet music. That Commission recommended:-(1) That persons broadcaRting copyright musical works should be made liable to pay royalties to the owners of the copyright ;

(2) That the principles of Section 19 of the British Copyright Act 1911 should be extended to the broadcasting of copyright musical works by radio, but upon some other basis ; (3) That the Commonwealth at the approaching international

conference should advocate that, so far as the Commonwealth is concerned, a limitation be placed on the royalty chargeable for broadcasting copyright musical works as follows:-(a) In the case of broadcasting stations receiving revenue from licence

fees, 5 per cent. of the gross revenue or, alternatively, at the of the owner of the copyright, 4d. per performance of each musiCal work. (b) In the of broadcasting stations not receiving revenue from licence

fees, 4d. per. performance of each musical work. (c) In both cases (a) and (b) no limitation should be placed on the number of copvr1ght items which the broadcasting company may broadcast. The royalty suggested was tound to be impracticable and it has not been suggested to the present Commission that such a basis should be adopted.

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. It be rointed out that, at the date of the above Report, the Australian Association had only m for a short per!od, that it had not had time to adapt its operations

to the or .mterests of broadcastmg, and that the Royal Commission on Wireless had before It ev.Idence which was far less complete than has been placed before the present Commission, and smce 1927 the number of broadcasting stations (particularly the "R" class stations) has mcreased In 1.927 all the broadcasting stations (both "A" and " B" class)

were commercial concerns and, m nearly every case, had carried on their operations at a loss, and the total number of listeners' licences only amounted to 225,249. Fu.rther, according to the evidence of Mr. R. .J. Nathan a member of the Australian that Association in 1927 was making to from 8s. to 4s. 6d. per

Item of music performed. Under may be doubtful whether the conclusions arrived at by the

Royal Coffiffilssion on Wrreless m 1927 have an important bearing on the matters which the present Commission is directed to inquire into and report upon.

RELATIONS WITH NEW ZEALAND.

. . Through the courtesy of the Prime Minister of New Zealand, the Commission was supplied with mformation as to the relations between the Australian Association and the broadcasting stations operating in New Zealand, and the Commission is greatly indebted to Mr. McNamara (the Secretary to the Postmaster-General's Department, Wellington) and Mr. Christie (of the Law Drafting Office, Wellington) for their courtesy and assistance.

From such information (see Exhibib 160), it appears that in 1926 differences l1ad arisen between the Australian Association and the Radio Broadcasting Company of New Zealand Limited, which controlled all the principal broadcasting stations in New Zealand. The was claiming 10 per cent. of the Company's gross revenue from listeners' licences and both the

Government and the Company regarded such claims as unduly high. The Association was informed that, unless its claims were modified, legislation might become neeessary. Conferences took place between the two parties to the dispute and the Secretary to the Postmaster-General's Depa.rtment, with the result that an agreement was arrived' at for a charge of approximately

6 per cent. of the Company's gross revenue. ' The Company's revenue consisted of five-sixths of each listener's licence fee (that is, 25s. out of the 30s. paid by the listener). In 1927 further difficulties arose between the parties, and the Government was approached

by the Company to introduce legislation. Consideration of this request was deferred until after the approaching International Convention to be held at Rome. In 1928 the New Zealand Copyright (Temporary) Amendment Act 1928 was enacted. According to the information supplied to the Commission, the Act was introduced in consequence

of threats of litigation made by the Australian Association unless its claims were submitted to. It is only fair to the Australian Association to state that Mr. Edwards, its Secretary, in his evidence, and Mr. F. Leveson-Gower West, who acted as Solicitor to the Association, in his Statutory (see Exhibit 156), do not, in some respects, agree with the information supplied from New Zealand.

Under the powers conferred by the Act the approved of 6 per ce?-t: being dedl:lcted from the revenue payable to the Company, and in December, 1929, a by the Minister awarded the whole of the moneys so deducted (less the Comnnsswner s fees) to the Australian Association, there being no other claimant.

After August, 1929, when the period covered by the Act expired, to

about 6 per cent. of its revenue were paid by the Company to the Austrahan AssociatiOn for a time but differences again arose and in a letter of the 7th October, 1930, from the Company's to the Postmaster-General, complaint is made that the Australian Association had

submitted much more stringent terms for the Company's acceptance. In 1931 the control of all the important stations in New Zealand was taken ?ver by the New Zealand Broadcasting Board established by the Broadcasting Act 1931. It IS not clear what arrangements have been made or are contemplated between the Board and the Australian Association.

As far as can be ascertained, the " B" class stations in New Zealand have always been comparatively Jew in number and of minor importance compared with the larger stations controlled by the Radio Broadcasting Company and the Board. Between the " B " stations and the Australian Association differences arose from time to time and, so far as this Commission can ascertain, differences still exist to some extent.

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NEW ZEALAND COPYRIGHT (TEMPORARY) AMENDMENT ACT 1928. This Act came into force on the 9th October; 1928, and provided that the period covered by the Act should commence on the 1st October, 1927, and terminate on the 31st August, 1929. It e}lacted that-

( a) Copyright in a musical work shall not be deemed to be infringed by the performance of a musical work at any time within this period in connexion With broadcasting. (b) From the fees charged for listeners' licences there should be deducted a percentage not exceeding 7! per cent. to be fixed by the Minister for Telegraphs. (c) The amount so deducted should be paid into the Post Office Account. (d) Every person, who, if the Act had not been passed, have had a claim for

damages for the infringement of copyright in any musical work by reason of its performance by a broadcaster within the above period, might apply to the Minister for compensation and the Minister should refer such claim to one or more persons to determine. In the opinion of this Commission, it would not be advisable to adopt the principles of the New Zealand Act. Experience of some years of broadcasting and difficulties which have arisen since that Act was passed appear to show that this Act may not operate fairly. Further, the operation of the Act is not confined to the Australasian Performing Right Association or

similar organizations. The Act provides for a fund out of which compensation is to be paid to every person having a claim for damages for infringement of copyright by reason of the performance of a musical work and would include individual authors and composers. Such a provision would or might be unjust to the individual author or composer (not represented by the Australasian Performing Right Association) who . may be 1.1.11-awar_ e of the performance ot his work by a broadcaster. His rights are turned into a claim for compensation, and he would have no. means of knowing what portion of the money in the fund belonged to him. It may also be open to

doubt whether a provision so wide is not too radical a change in the law of copyright so far as individual authors and composers are concerned. The Act makes no provision for the supply by the broadcaster of a of the items -performed, and the provision of some such list is. reasonably essential to the Australasian

Performing Right Association to enable it to make distribution ofthemoney collected. The New Zealand Act provides a method of charging on reyenu_e, and in the opinion this Commission such a method of charging would not only be unfair t(), th-e " B " class stations, but is not, in their case, asked for by the Australasian Performing Right It may be also said that the New Zealand Act excludes or discourages possibilities of making' agreements between broadcasters and the Australasian Performing Right Association which may be in keeping with the changes in broadcasting and in the interests of owners of copyright.

A further objection to the New Zealand Act may be that possibly it conflicts with Treaty obligations under the International Conventions so far as individual authors are concerned.

REPORT OF S. G. RAYMOND, ESQ., K.C., OF NEW ZEALAND. -· .. - Mr. S. G. Raymond, K.C., was the delegate of the Government New Zealand to the Rome Convention of 1928, and a copy of his re-port (included in Exhibit 160) has been furnished to the Commission by the New Zealand Government. -

In his report Mr. Raym.ond draws attention to the advantages ofenteringthe International Union gained by a country like New Zealand (and, it may be added, the Commonwealth of Australia), the advantages including the folloWing ·;_, (1) Their interests do not in all respects coincide with those of Great Britain.

(2) The cultural achievements of radiophony have already been so great, while its potentialities are so that a such. a:s Ne.w

must if it is to keep Its place m the march of ClVllizatwn, be VIgilant m keepmg, so fa; as it can, the great discoveries in the radiophonic field free from domination by commercial and :financial combines and associations. He also points out the important results .from entry of Canada:, Australia .and New Zealand into the Union in that for the :first time m the history of Internatwnal Copynght Conventions the interests of the public and the great body of purchasers and consumers of copyright wares, were vigo.rously voiced. , . . . .

He considers that the results of the Rome Conventwn the most illlportant. so far as New Zealand is concerne_ d, is contained in Article 11 (bis), a new Article adopted by the Convention in consequence of the e:fforts made by Australia, New Zealand and Norway. -

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He points out that before the Convention two views were put forward :-(1) that the author's rights over the products of his brains should be complete and his right of property sacred ; (2) that broadcasting_ was a publi? subject to public control upon just terms;

tha:t 'Yas yet m Its mfancy and the conferment of absolute rights

wh1ch might conceivably be abused would be a mistake, and that the proper course to adopt was to reserve powers to the Legislatures of the various countries to deal with these rights. Mr. Raymond considers that the latter view/substantially prevailed and the new Article 11 (bis) was adopted.

He puts forward three propositions:-(1) that, if the exclusive right conferred by Article 11 (bis) is or may be so exercised as to become an abuse, the New Zealand Legislature can control it ; (2} that what consiiitutes an abuse is a question exclusively for the Legislature subject

to its acting honestly and reasonably ; (3) that the New Zealand Legislature may provide for compulsory licence or other scheme upon payment of a royalty, percentage on door or other receipts, or other compensation to copyright holders, to be assessed in such manner as

that Legislature thinks :fit. At the close of his report Mr. Raymond suggests (inter alia) :-(a) That the existing copyright law, conferring upon copyright holders public performance rights, needs alteration to meet present-day conditions.

(b) That some system of compulsory licence established to afford protection against overcharge and other abuses. (c} That a competent authority to deal with compensation in default of agreement be appointed. (d) That concentration in one representative body of performingrights seems necessary,

and at present the Australasian Performing Right Association appears to fill this position. (e) That broadcasting may play a very important part in educational work and some of the Continental delegates attach much importance to that aspect of

it.

(f) That broadcasting is in the nature of a public utility, and the modern te:p.dency · is towards State ownership or control. (g) As the needs of the various Dominions are much the same, conference with them, and particularly with Australia, where the Australasian Performing Right

Association also operates, seems desirable. Article ll (bis) and its application to such a society as the Australasian Performing Right Association is diseussed later in this report. When considering Mr. Raymond's report and suggestions, it should be borne in mind that there may be differences between the powers ofthe New Zealand Parliament and those of the ·commonwealth Parliament so far as combinations and associations are concerned.

Sir W. Harrison Moore (the Australian delegate to the Rome Convention) in his Supplementary Report (pages 15-18) points out that,. if the Commonwealth is to be able to give protection to the public interest, it must be through its power over copyright (and, it may be added; over patents, so far as records are concerned).

Other portions of his report have an important bearing on the meaning and effect of the International Conventions and. the powers of the Commonwealth Parliament.

SELECT COMMITTEE (ENGLAND) REPORT. The difficulties experienced by music users in Great Britain owing to the activities of the Performing Right Society are illustrated by a report of a Select Committee of the House of Commons.

In 1929 the Musical Copyright Bill was introduced into the House of Commons (England) and was referred to a Select Committee. The Billproposed to materi!lllY the existing la:v ofcopyright so :ts (1) to make it compulsory that notice of reservatiOn of ?e on every copy of a work_ as a

condition of the retention of the performmg nghts m musiCal works, and (2) to provide a compulsory licence in respect of performing ,:ights, insofar as they have been retained by printing

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the requ!-red notice, a fixed maximum applicable to the fee which may be demanded trum the music user. The Bill was not to apply to any musical work published before the passing of the Act. The Board of Trade, the Performing Right Society (England) and associations of. users of music were represented and offered evidence before the Select Committee.

The Special Report of the Select Committee, after referring to the constitution and membership of the Society, its system of collecting fees and its to control upwards of 2,000,000 musical works, was satisfied, from the evidence before it, that the Society controlled the performing rights in nearly all of what may be termed " popular " music.

The Committee's Special Report (Exhibit 23) states-(a) The complaints which have been made by music users against the Society appear from the evidence to be substantially the following :-{I) that the Society does not publish any list of the works controlled and

it is impossible for the music user to discover what music is covered by the Society's licence and what is not; (2) that the Society has made arbitrary increases in the licence fees and that the music users have no means of protecting themselves against

further increases or of ensuring any reasonable stability in such charges. (b) The Board of Trade and the Foreign Office are of opinion that the provision making notice of reservation compulsory would conflict with the treaty obligations of

Great Britain. (c) The Society had offered to circulate regularly to its licensees a complete list of all its publisher mem,bers, and the offer of the Society goes a considerable way to meet the complaints made. (d) Substantial increases in the charges made by the Society had been demanded and

obtained in the past, and composers and music publi8hers had expressed the view that the present charges were too low. The Committee is satisfied that the Society controls 90 per cent. or even more of the performing rights in copyright music and promoters of entertainments who require to use music of the popular type are not in a position to do without the music controlled by the Society, and are, therefore, compelled to pay the charges made by the Society. In such circumstances the fear of music users that the Society may use what may be termed its super-monopoly to demand still higher fees appears to be well founded, and it is not unnatural that they should desire to have a right of appeal to an independent body when they are faced with unreasonable demands and are unable to come to a mutually satisfactory agreement with the Society. (e) After pointing out that the composer is entitled to receive a reasonable

remuneration, and that no obstacle should be placed in the way of composers forming an association for the purposes of protecting and enforcing their performing rights, the Committee reports that such an association is undoubtedly a convenience and almost a necessity, both to the composer music publisher and to the user of music. (/) Such a super-monopoly can abuse its powers by refusing to grant licences upon

reasonable terms so as to prejudice the trade or industry of persons carrying . on business and to be contrary to the public interest, and it should be open to those persons to obtain relief in respect of such abuse by appealing to arbitration or to some other tribunal. This should apply only in those cases

where th!3 ownership or control of copyright has been transferred to an association. .

(g) It had been suggested that any legislation to give eftect to this proposal would be contrary to the terms of the Revised Berne Convention 1908, but there appeared to be considerable difterence of opimon upon the matter. It was recommended that His Majesty's Government should consider whether such legislation would conflict the treaty obJigati

(h) If it should be found that-no such legiSlation lS at present poss1blc, 1t wa.-; recommended· that the Board of Trade should keep in touch with the position • with a view to framing a policy for adoption at the next meeting of th.r International Copyright Union in. 1935 which would secure for His

Majesty's Government to deal With any abuse of monopoly nghts such as that to which reference has been made.

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Broadcasting .was not represented and no reference to Broadcasting is made in the Special Report. · · ... · . .

The Select Committee reported the Bill without amendment and the Bill was not proceeded with.

GENERALLY.

This Commission has not overlooked the fact that throughout the world authors and composers have always depended and still depend to a great extent on publishers for their revenue, and without their assistance, often generously and gratuitously given, many authors and composers could not make a living. On the other hand, it is of importance to bear in mind

that the charges made by the Australian Association are largely formulated by publishers and firms . carrying on similar businesses. These considerations, however, should not prevent payment of a reasonable sum for the use of the Association's repertoire. It seems impossible to assess in money the value of a musical work. Any valuation must

on demand and to an extent be arbitrary. To assess the value of a performing

nght in money is even more impossible ; it can only be done by arbitrarily fixing the fee. It is mainly because of this that these differences and disputes have arisen between the Australasian Performing Right Association and the various classes of users of musical works. There appears to be no definite basis on which a performing right fee can be fixed, and possibly the only solution of these differences is the appointment of some form of tribunal which can

pronounce a final judgment as to what must be taken to be a reasonable fee or what conditions of U:ser are reasonably fair to the parties to the dispute. this Commission was appointed the Australasian Performing Right Association,

its claims and methods were attacked from many quarters and from different angles. It may be that these attacks were justified to. some extent owing to hasty and ill-considered action by local solicitors and agents and sometimes owing to some members of the executive being somewhat wanting in;,consideration for the difficulties of those who the Australasian Performing Right Association's :riepertoire of music. This Commission, however, is satisfied that many of the

charges laid at the Australasian Performing Right Association's door were due to ignorance of the law and of the existence and extent of performing rights. Practically, until the Australasian Performing Right Association was incorporated, performing rights were not insisted upon in Australia and •their existence unknown to many of the public.

Charges were made that the A-ustralasian Performing Right Association was extortionate in its demands; determined to obtain the uttermost farthing from users of its music, and brutal in its threats if its demands were not acceded to, but there is no evidence before this Commission to justify such grave charges as these.

The Australasian Performing Right Association's business is conducted with a view to obtain what the Association considers is fair compensation for the valuable assets which it claims to control, and no doubt it has made and has sought to impose conditions which to the users of its music not unreasonably appear to be unfair.

Possil;>ly the Australasian Performing Right Association, with the knowledge it has acquired through this Commission, may now realize the difficulties and understand the views of the users of music in public and may be more inclined tp make concessions than may have hitherto been the case.

One result which shoUld follow the proceedings before this Commission is the clearing away of misunderstanding and misconception in the minds of users and of part of the community as to the bona fides of the Australasian Performmg Right AssoCiatiOn and its methods of conducting its business.

The evidence has satisfied the Commission that on the whole the Australasian Performing Right Association carries on its business on sound lines, is ma:naged by and reasonable men, protects to the best of its ability the interests of the copynght owne!s It accounts, as best it can, to those whose money it collects, and attempts to afford mformat10n to those who

use or seek to use the music it claims to control. Apart from all disputes which have occurred and differences of opinion as to the reasonableness or otherwise of the Association's conduct in the past, the following conclusions appear clear. It is di:fficwt to imagine any. monopol:y with powers as a.!e by

the Australasian Performing Right AssoCiatiOn through Its affiliatiOn and associatiOn the Performing Right Society and other Societies throughout the world. It controls or claiiDS to control over 80 per cent. of the best music 'Yhich subject to no one .is .in ,a

position to dispute these claims. It can dictate Its ow:r; the. Ass?CiatiOJ?- s

consent, no one can use its music in public. The commuruty lS prevented from listew.ng .to

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music unless the Associatian agrees to its use· in public. There is, and, unless the law be altered, there can be, no restraint placed upon its demands. It has practically no· competitors ; the amount of copyright music left available is but small, and cannot satisfy the needs of the users or the reasonable requirements of the public. It cannot be said that the demands made hitherto

have been extortionate, but they can be made so. The user in public and the community itself are dependent on the goodwill of and the policy pursued by the Australasian Performing Right Association and itsmembers.

PART 111.-BROADCASTING IN AUSTRALIA. Broadcasting in Australia apparently differs from that in all other countries. In Australia there are National (and non-profit earning) stations operating side by side with 46 " B" class stations which are carried on for profit, each class supplemental to and necessary to the other. In Canada, United States of America and Europe, the stations are mainly commercial or profit earning concerns. In Great Britain there are only National stations. In New Zealand all the important stations are National, and the profit making stations are few in number and more or less unimportant.

Exhibit 149 shows that there are within the Commonwealth twelve National stations (eight originating stations and four relay or regional stations). These stations are on the airfor hours varying from 87! to 71! per week. In Sydney there are 2, in Newcastle 1, in Corowa 1, in Melbourne 2, in Brisbane 1, in Rockhampton 1, in Adelaide 1, at Crystal Brook 1, at Perth 1, and in Hobart 1.

There are 46 "B" class stations-! at Canberra, 14 in New South Wales {6 in Sydney, 2 at Newcastle, and the others in country towns), 13 in Victoria (5 in Melbourne, 1 at Ballarat, 1 in Geelong, and the others in country towns), 8 in Queensland (4 in Brisbane and the others in country towns), 4 in South Australia {3 in Adelaide and 1 at Port Pirie), 3 in Western Austtalia

{2 in Perth and 1 at Kalgoorlie) and 3 in Tasmania {1 in Hobart, I in Launceston, and I in Ulverstone). The hours per week on the air of "B" class stations are as follow: One over IOO hours, 9 between 80 and 100 hours, 7 between 60 and 80 hours, 11 between 40 and 60". hours, and the others under 40 hours.

The increase in the number of the "B" class stations is-Stations operating. •

In 1925 . . 7

In 1926 . . ., 8

In 1927 . . 10

In 1928 . . 10

In I929 . . IO

In 1930 . . 22

In 1931 . . 38

In 1932 . . 46

The "B" class stations in 1932 were employing about 475 persons throughout Australia. The following table (taken from Exhibit 47) shows the increase of Listeners' Licences since 1924:- .

Number of Licences. Ratio to 100 of Population.

To July; 1924 1,206 .02

"

1925 66,605 1.1

"

1926 141,398 2.3

"

1927 233,286 3.82

"

1928 275,441 4.42

"

1929 303,192 4.78

1930 323,004 5.03

, 1931 330,918 5.10

To December, 1932 419,180 6.40

It is agreed that the average number of listeners is four per licence, so that over I,676,000 of the listening public are interested directly in broadcasting. Mr. 0. F. Mingay, the Managing Editor of the Radio Retailer of Australia, the trade journal of the radio industry, gave evidence•of the enormous increase in the sales of radio sets. He stated that the sales had arisen from 40,000 in I93I-to over IOO,OOO in I932, and that the salaries and wages paid by the industry amount to over £50,000 per week. Over 4,000 persons are, he states, employed in the retailing of radio sets. This increa.se and prosperity he attributes

mainly to the "B" class stations.

21 1183

May it !lot be that in countries like Australia with vast territory sparsely populated IS practically the sole means of bringing information, intellectual enjoyment,

recreat10n, and, to a degree, education to the public residing outside the larger towns.

To those and without the towns it brings by efficient and comparatively inexpensive means, news of mterest, good music such as they cannot otherwise hear, and recreation within the home. To the " man on the land," the sick, the blind and the aged, broadcasting is invaluable.

. Should not the rights of authors, composers and publishers be harmonized -with the general mterests of the State, to which individual interests should particularly submit themselves

At the same time these rights and interests should be reasonably safeguarded and equitable compensation awarded for the valuable works made available. · ,

If the provider and the user cannot or will not agree, it is open to Parliament to legisiate on lines fair to the owners of copyright, to the broadcaster, and to the public. .

PART IV.-EFFECT OF BROADCASTING ON SALES OF MUSIC AND RECORDS. That broadcasting generally has affected the sales of sheet music and records is undoubted. It supplies attractive entertainment and variety easily and cheaply within and without the home, with the result that the public look to broadcasting for pleasure and recreation rather than to sheet music and records.

On the other hand it is clear that, to an extent and in many instances; the broadcasting of music aids, by advertisement, the sales of both sheet music and records.

In the opinion of some witnesses, men of practical experience, broadcasting has brought out of obscurity large numbers of old-fashioned musical works, still subject to copyright, with the result that sales of sheet music and records of that type have increased. The chap.ging habits and tastes of the public must also have contributed to the losses

complained of.

Probably the most important cause of losses in sales is the serious depression which has so much affected the spending power of the public. . It is impossible, therefore, to attribute the falling off of sales to any particular cause or to say what proportion of the losses is to be apportioned to any of several causes.

What. has been made clear is that the too frequent broadcasting of a record must prejudice sales and that conditions imposing constant announcement of the make, titles, &c., of records is unfair to the broadcaster.

When considering the charges and conditions sought to be imposed by the Australasian Performing Right Association and the record manufacturers, it is material to see what losses in sales have taken place and, if possible, to ascertain what are the causes. Are the losses entirely or in the main due to the broadcasting of musical items or to broadcasting generally or to other The loss of business sustained by the record manufacturers is referred to later in this

Report. ·

One of the most important music houses in Australia furnished the Commission with returns showing that the sales of gramophones and records fell from 159,000 in 1927, to 40,000 in 1931, and sheet music from 46,000 in 1927 to 27,000 in 1931. On the other hand, the same return showed that the sales of radio sets had increased from

3,700 in 1929 to 27,000 in 1931.

Another large :firm in Sydney showed a fall of from 1,009,950 of sheet music in 1927 to 275,000 in 1932 (Exhibit 32) and a reduction in mechanical contrivances, such as records, of 85 per cent. during the same years.

Another large Sydney fum showed (Exhibit 39) a reduction of from a figure of 100 per cent. in 1928 to 38 per cent. in 1932 in sales of sheet music and of phonographs and records of from a :figure of 100 per cent. in 1928 to 27 per cent. in 1932. Other representatives of the largest music houses in Sydney, Melbourne, and Adelaide

give evidence of the serious falling off in sales of sheet records and since

1927 or even earlier, and remarkable figures have been supplied to the CommiSsiOn to Illustrate the fall in sales. Agents, distributors and others interested in the sales give the same evidence and similar details.

22

t

All, or nearly all, of these witnesses say that in their experience earlier depressions did not ji appear to have had much effect upon sales, but all agree that the present depression is far more i serious and far more widely spread than any Australia has ever passed through. I

Most of the witnesses called on behalf of the Australasian Performing Right Association l and the music firms attribute praQtically the whole losses to the broadcasting of music and

particularly to the " B " class stations, alleging that, with so. much music on the air and the •· constant repetition of items, the public are ceasing to buy sheet music and records. I '

May not this be taken into consideration when the Australasian Performing RiO'ht ' Association's charges and conditions relating to broadcasting are under review. Broadcasting generally has not only provided a source from which fresh revenue has been and will be provided for authors, &c., but it undoubtedly provides a valuable aid to making their works popular and, to an extent, more readily saleable. Further, broadcasting has undoubtedly created a demand for older forms of classical music which is within the public domain and assisted the sales of such music. The publisher members of the Australasian Performing Right Association would reap the benefit of increased sales of that class of music.

May not some of the same considerations apply to Record Manufacturers provided the use of records by Broadcasters be judiciously and properly regulated ? .

PART V.-THE NATIONAL BROADCASTING STATIONS. The Australian Broadcasting Commission was incorporated by the Australian Broadcasting Commission Act 1932 and on the lst July, 1932, assumed control of the National Broadcasting Stations.

The views and the evidence tendered on behalf of that Commission were put forward by the late Mr. H. P. Williams, the General Manager, with marked ability and given by him to this Commission has been of the greatest value. His death is much to be deplored and Broadcasting in Australia has sustained a serious loss by reason of his untimely decease.

The Act provides that the Broadcasting Commission-(!) shall provide and broadcast from the National Stations adequate and comprehensive programmes and take, in the interests of the ,community, all such measures as in the opinion of the Commission are conducive to the

fuller development of suitable broadcasting programmes; (2) shall transmit from all National Stations any matter the transmission of which is directed by the Minister as being in the public interests ; (3) shall not broadcast advertisements; (4) shall as far as possible give encouragement to the development of local talent; (5) shall endeavour to establish in such manner as it thinks desirable, in order to

confer the greatest benefit on broadcasting, groups of musicians for the rendition of music of quality.

Under the Act the Commission has to provide studios, offices and other. necessary accommodation and certain minor expenses of broadcasting, but otherwise its. whole revenue has to be applied in furnishing programmes. The principal technical services are provided for by the Postmaster-General.

It will be seen that the object of the Act is to provide a system of National Broadcasting in the interests of the public at large and that the Broadcasting Commission is not a profit-making concern. From the evidence it is clear (and with this conclusion all parties agree) that broadcasting as conducted by the Broadcasting Commission through its stations is in eve!y sense a public utility, and conferred o:r: th.e P?-blic great and the general public, or a very considerable portwn of the pubhc, IS vitally mterested m the mamtenance and success of the National Stations.

The evidence also establishes that, unless these stations can use the musical works controlled by the Australian Association, they cannot now and for some time to come successfully and efficiently maintain a National Service. The same applies, though to less extent, t? the records made by the Record Manufacturing Companies, if the Broadcasting Commission contmues its present policy of obtaining records on the Australian market.

23 1185

. As the efforts made by the Broadcasting Commission to assist artists living

m Austraha, details were supplied from two typical National Stations (2FC Sydney and 3LO Melbourne) for July, August and September, 1932 :- ·.

2FC-July ..

August

September

3LO-July

August

September

59 per cent. mechanical performances. 41 per cent. human performances. 61 per cent. mechanical performances. 38 per cent. human performances. . 58 per cent. mechanical performances;

41 per cent. human performances.

50 per cent .. mechanical performances 49 per cent. human performances. 57 per cent. mechanical performances. 43 per cent. human performances. 4 7 per cent. ·mechanical performances. 52 per cent. human performances.

CHARGES MADE TO THE AUSTRALIAN BROADCASTING COMPANY LIMITED. By agreement of the 29th January, 1930 (Exhibit 37) the Australian Association licensed the Australian Broadcasting Company Limited (which was then about to take over the control of the "A" class broadcasting stations) to use and perform the musical works controlled by the: Association for a term of three years from the 17th July, 1929, in consideration of the Company

paying to the Association one-sixth of all moneys paid to the Company in respect of listeners' licences up to the first 250,000 licences, a further sum equivalent to one-eighth of such moneys in respect of further licences from 250,001 to 300,000 and a further sum equivalent to one-twelfth of such moneys paid in respect of all licences in excess of 300,000. · . .

These charges are said to be equivalent to 2s. per item of music performed up to 250,000 listeners' licences, ls. 6d. per item on the next 50,000 and ls. per item on all listeners' licences over 300,000. ·

In fact, no charge on a " per item " basis was made on the " A " class station.s, and the charges mentioned in the agreement were paid or accounted for up to the time when the Australian Broadcasting Commission assumed control of the " A " class stations.

OFFER MADE TO THE AUSTRALIAN BROADCASTING COMMISSION. About June, 1932, the Australasian Performing Right Association offered to grant to the Australian Broadcasting Commission a licence for the use of the copyright works controlled by the Association at the following rates:-

(a) 2s. 4}-d. per item per main station on a basis of 350,000 licensed listeners, and (b) £d. per item per main station for each additional 10,000 licensed listeners. This offer was refused by the Broadcasting Commissi9n and up to the present no agreement has been arrived at.

·These rates have been put forward by the Australian Association before this Commission as reasonable and the Association has throughout claimed that a "relay" must be treated as a separate performance. The Association urges that -the fees collected and remitted abroad are seriously reduced

by taxation and exchange. For 1931 the average charge made .to . the Australian Broadcasting Company (a profit-making company), which then controlled the " A " class stations, was equivalent to 2s. 5. 352d. per item.

In that year the Company paid £30,190 for performances (of which 49,992 were not claimed as copyright)'. In other words :the Australian Association was paid for 246,858 performances at an average rate of 2s. 5. 352d. per item. The reasons assigned for requiring higher charges to be paid by the Australian Broadcasting

Commission than were paid by the Australian Broadcasting Company are--:-

F.l566.-5

(!) that, as the number of listeners' licences rapidly increased, the charge paid by the Company became equivalent to ls. per item over the aggregate, while the public demand for more music increased ; (2) broadcasting of musical items was alleged to seriously injure the sale of

music. and records, "'"ith the result that owners of copyright were faced w;tth a falling return as the number of licensed listeners increased and a fallmg return from the sales o£ sheet music and records.

' :

I,

I :

: i

: I

'

24

; ; ·· Th'i Australian ·Association bases its claims to make a "per item" charge principally on -two (a) that it enables the Association to more accurately account to the owners of copyright it represents ; and

- (b) that it enables the user to know what he has to pay for each item of music used by him. . ··

.;

OFFER MADE BY THE AUSTRALIAN: BROADCASTING COMMISSION . . · Before this Commission the-attitude taken up ·by the Australian Broadcasting Commission towards the Australasian Performing Right Association was that payment of a reasonable sum should undoubtedly be made· to the Association for the use of its music and that, as far as possible, lists and particulars of music used should be furnished by the National Stations. The real question between them .is what is a reasonable charge ·

The Commission offered 5 per cent. · of its total revenue, plus exchange on the net amount of fees received from the Commission and remitted abroad. The total revenue from 426,926 listeners' licences iri force at the end of January, 1933, was £256,156 and the Association's claim would b¢ equivalent to £34,989 per annum; that is, 13 per cent. of the revenue, whereas the Qonp:nission's offer would be £14,729 plus exchange. · · . .

·. From each listener's licence fee of 24s., there is deducted Is. ·by the Postmaster-General's Department for the costs of collection, 3s. was paid to the Amalgamated · Wireless Association for the use ofits patents, 8s. is retained by the Department for carrying on mec.hanical services of the National Stations, and the balance (12s.) is paid to the Broadcasting Commission. The. money so paid to the Commission is its sole source of revenue. · . .

·· · · It has beenstated in.the .Press that the payment of the 3s. to the Amalgamated-Wireless

Association is to be discontinued, but no official confirmation of this statement is before the Ooiniriission. ·

'

· ·· A graph prepared by the Broadcasting, Commission (Exhibit 45) shows .how much higher are the charges proposed to be levied than were payable by the Australian Broadcasting Company. WJ?.en the listeners' licences reach 500,000, the proposed charge would to 3s. 3fd. per item, equivalent .to £40,578 per annum, as compared with £38,750 . paya.ble by the Qompany. It is reasonable to suppose that within a few years the number will reach and the proposed

charges will then be 4s. 6f-d. per item, equivalent to £56,000 as compared .with .£49,000 payable by< the Company. · . ·· . · ··

· · · ev'ldence before this Commission shows:- · · · ·

(a) The British Broadcasting Commission pays (on a basis .of 4,526,075 licences) about £63,500 a year for the whole repertoire controlled. by the Performing Right Society. Under the rates pr9posed to be charged .by the Australasian Performing Right Association to the Australian Broadcasting Commission, the British Broadcasting Commission would pay £169,877 per /annum. (b) In Germany (on a basis of 3,980,840 licences) the Broadcast.ing Board of

would· have a revenue of £2,805,879 at par · on sterlmg. The Copyright ' Associations receive 3! per cent. Without any restriction as to the numbers. of musical items used, representing £98,205 per annum. If the Australasmn Performing Right Association's claims were applied to Germany, the amount

paid would be £364,764 per annum. (c) In Austria the Broadcasting ·Authority pays 3! per cent. of ·· the revenue from · licences (calculated on 476,000 licences). The amount paid is equivalent to £11,245, and, if the Australasian Performing Right Associapion's claims were

. applied to Austria, the amount paid ·would be £39,046. . (d) In .· Poland, where some 300,000 · licences are in the Broadcasting · Authority pays to the Copyright Society 3 per cent. of with a minimum of about £3,200 a year. The amount paid to the SoCiety IS

ab.out £7,425, and, if the Australasian Performing Right Association's charges w:ere"made in Poland, the amount would be £24,750. (e) In United States of America. the paya.ble the agreement

· recently made with the Amencan Performmg Right are roug.hly . £300,000 for 1933, £400,000 .for 1934, and £500,000 for .1935. The made by the Australasian Perfo:rtning Right Association, . if made apphca?le to America , would amount to £1 ,560,000 for 1933 with a eorrespondmg nse

for 1934 and .} 935.

(f)

. 1187

In New Broadcasting if it were to continue to pay at .. the

rate prevwusly pa1d by the Broadcastmg Company which controlled the "k'-' •. per and the Right

Assomatwn s claims, if. made to New Zealand, would amount to £11,365. ·'-

The information as to the Continental countries was obtained by the late Mr. H:-P. Williams from the Union Internationale de Radio Diffusion, Geneva, said to be the highest from which such information can be obtained. The figures as to Great Britian were

by him partly the same and from info:qnation supplied to by the

Drrector-General of. the BntiSh Broadcastmg·Coimp.ts8wn. ·

_. _If_ the Australian Association's proposed_ charges become payable, the

CommiSsiOn would have to pay 13 per cent. of 1ts revenue, compared with 5 per cent. (Great Britain), 3! per cent. (Germany), 3! per cent. (Austria), 3 per cent. (Polana.), 3 per cent. to 5 per cent. (United States of America},-'and 6 per cent. (New Zealand), -The Commission also strongly opposed the claims made on . grounds (which are established by the evidence)- .. '- _ _ :'· - -_ -- ... -Jo • -

(a) that in no country in the world except .Australia has the basis of a: '.' per iwm" charge been in force ; (b) that in England, after a short trial, it was discarded, and · _ _

(c) that the principle also of increasing the charges as the number of listeners' licences · increases is contrary to that in the case of the Australian Br?adcasting Company and has not been apphed many other country. · ·

The parties having· failed· to _ agree, the Broadcasting Commissiou. is not auy payments to the Australasian Performing Right Association, · but detailed. accounts and lists of music performed are being kept. It shoUld also be pointed out that the repertoire of the Association is not exclusiye, that

is, the same piece of music may be performed by a number of stations (National or. " B " .. class) and a separate _charge made for each performance. _ . . -

For the: Broadcasting Commission it was contended that, although it is conceded that broadcasting generally has been and will be a contributing factor to the loss of sales of sheet music and records, it is impossible to state what effect it, in combination with other circumstances, has had or is likely to have, and t_ hat, in any event, it is not equitable that a charge for performing

right should be based upon compensation for loss of sales. To do so would be to make a charge upon the rapidly advancing stages of evolution of broadcasting. · · · .. - ·

It was f{lso pointed out, with some force, that one serious .objeclion :to the offer the Australian Association is that, if the revenue of the Broadcasting CommissiQU .f.alls below the of 350,000 listeners' licences, the charges are not correspondingly reduced. It has been stated in evidence, and is not seriously disputed, that in 1931 the ''A"

stations used about 245,000. items of music, while the-" B" class .used some 75{),000, almost aU ofwhich were claimed by the Australian Association as under its control. The Australian Broadcasting Commission not unfairly points out; not that the of from 3d. to td. per item levied on .the .'' B" c-lass stations is too low, but thl:}t .. the p;roposed

charge to·the National stations is far too high .

PART B" CLASS BROADCASTING STATIONS. In 1928 _ a Federation was formed by a number of the " B" class stations 'in order;to protect their interests, an_d in 1930 it was by the Au:>tralian Federation of Stations. Both Federat10ns were brought mto enstence mamly by reason of clmms .made _by the Australasian Performing Right Association and of lit igation commenced or ·thleatened

against some of the " B ". class ·stations., Australian Federation a ;membership of 38 stations (includina all the nnportant " B statwns and many of the statwns m country towns), with _ a president, 0

vice-pr_esidents, a council of nine, and an. of

The Federation has not been mcorporated and has no power to bmd 1ts members, but m pract1ce the members have been prepared to carry into effect the decisions ofthe Executive. ·-Up to the end of 1930, the, ".B" had using the music to. be

within t he repertoire of the Australian and makmg the

Association but about December, 1930, or earlym 1931 the Assomat10n from a or £3,321 to about £8;000 per annum. Negotiations failed to, bring aJ:lont :!1:u agreement and. the then its to· _ a total of -_

was allocated by the Assomat10n to the different B class stations on a per Item _-_ baSis

·'

' ' ,i

., ,.

.·.-',

26

from 3d. to -fd. per item to the importance of the station. • These charges

were higher than some of the small statwns could afford and a few of the important stations assisted them to pay. . .. , ..

·· · At .first all the stations paying the higher rates regarded them as inequitable

but expenence durmg 1932 nas shown that the rates on the whole are not unfair. 1\Ianv of the station ·stations, however, have deposed that any subatantial increase on

on the rates ex1stmg m 1932 would cause broadcasting to be unprofitable. . ·. Under 1932 all." B" class stations are bound to make regular returns

to the Australian Assomatwn of all musiCal works performed. The Association deducts 15 per cent. for what may be non-copyright items and the staticns are charged for the balance. For 1932 the charges made (see Exhibit 73) were­ ,_,. Section A (10 stations)

S-ection B (8 stations) Section C (8 stations) ·· ·Section D (14 stations)

Section E (5 stations)

based upon the importance of the stations.

3d. per item 2d. per item lid. per item .. : ld. per item

id.per item

CONNEXION WITH BUSINESS INTERESTS AND ORGANIZATIONS. · All the " B " class stations are operated with a view to earning profit and practically the whole of their revenue is derived from advertisements delivered over the air. In four stations newspap_ers have interests, in seven music or radio firms and other business houses hold substantial ·interests, in five religious or similar bodies have interests, and with three political or semi-political -organizations are connected. In the case of the stations connected with religious and political

organizations, the surplus revenue is applied in the maintenance and improvement of the stations. None of the " B " class stations receive any form of · subsidy from the business firms or organizations with which they are connected, although it is reasonable to suppose that financial assistance would be forthcoming if needed. ·11 ·

TRADING RESULTS.

· · A statement placed before the Commission (Exhibit 148) shows the revenue and profit or loss of 30 "B" class stations (including almost all the important stations) for the year ending 30th June, 1932. The total revenue amounted to £132,594 and the net loss to £4,778. One station earned a profit of £3,229 ; three earned profits over £500 and less than £7 50 ; four made profits over £200 and less than £400; two earned profits over £100 and less than £200; in· the case of two, less than £100 represented profits and sixteen sustained a loss varying from £50 to £3,452.

The evidence shows that prudent management of a "B" class station demands that I' ·substantial provision should be made for depreciation in view of the rapid advance of and 1 improvements in broadcasting. Exhibit 148 does not disclose what amount has been allowed for depreciation, and that Exhibit and Exhibit 169 (the balance-sheet of an important station) can

only be treated as giving a general idea of how the " B " class stations .fared 1932. . A return supplied to the Commission (Exhibit 167) shows that in the case of eight principal "B" class stations, out of a total gross revenue of £91,703, the sum of £4,961 was allocated to depreciation. ·" '

The competition between " B " class stations is very keen and the expenses including commission of obtaining and putting over the air advertisements are very heavy, estimated by the Secretary of the "B" class Federation to probably amount to 40 per cent. to 50 per cent. of the gross re:venue. It is largely for these reasons t4at tlie " B " stations have extended their hours on the air. -

AGREEMENTS FOB, 1931 AND 1932.

· The form of agreement entered into between the Australasian Performing Right Association and all broadcasting stations (Exhibit 54) (and also the form"of licence granted to other users of musical works in public) provides (inter alia) for the furnishing of lists of works performed and fo.r an indemnity the claims by authors, composers and

publishers of musiCal w<;>rks for whiCh the nght of user IS . During 1932, the Australian the " B" class to use its

repertoire on payment of charges varymg from 3d. per Jtem .fo: the larger to id. item for some of the country stations. Before the Comrmss1on stated Its

'ft'illingness to allow that arrangement to continue for a reasonable t1me proVIded the proposed ;

I

27

' !r

ll89

charge. the National with a rising scale was accepted by the Australian Broadcasting Commission. If, however, this proposed charge were not accepted, the Australian Association would have to reconsider and possibly-increase the charges to the "B" class stations. The " B class stations regard the present charges as the maximum that they can afford to pay present and for some time to come, and, in. ·the case of many of them, this appears to

be established. The licences granted by the Association to these stations have expired and any attempt by the Association to increase its charges or alter it.s conditions will be resisted by all or most of the " B " class stations. ·

" PER ITEM" . CHARGES.

At present the " B " class stations are paying performing fees on a " per item " basis, but, during negotiations, discussions arose as to whether the charge should be cal9.ulated on a. percentage of gross or net revenue. ·

All the " B " class stations are strongly opposed to a charge calculated on revenue and there is justification :for their opposition. A charge on gross revenue would be unfair because of the heavy expenses incurred in connexion with advertising many of which have no relation to net revenue. A charge on net revenue would be difficult to estimate, for much the same

reason-in many instances it is impossible to determine what expenses are to be debited to advertising revenue. Apparently a charge on a " per item " basis is acceptable to these stations and to the Association.

QUEENSLAND AND OTHER " B " CLASS STATIONS. Mr. Chandler, the Manager of Station 4BC (Brisbane), was deputed to represent his own and five other Queensland stations, and, from his evidence, it appears that in Queensland, owing to the small number of National Stations in or within reach of that State and the atmospherio

conditions rendering it difficult to listen in to distant stations, the "B" class stations render more important service to the public than may be the case in. States such as New South Wales and Victoria. For these reasons he claims, and there is great force in what he says, that the Queensland stations (particularly those in the country) should receive more liberal treatment from those who supply music. Possibly the same considerations may apply to "B" class

stations in portions of States such as South Australia and Western Australia. The establishment of zones or areas for "B" class stations, and the formulation of corresponding charges and conditions, may be advisable and, if the suggestion of a triounal be acceded to, such matters might receive consideration.

PROPOSALS FOR SUBSIDY.

A number of suggestions were made to the Commission to enable the National and the " B " class stations to pay and the Australian Association to receive satisfactory charges for the use of the latter's repertoire:-(1) that a larger proportion of the listeners' licence fees should be paid to the

Broadcasting Commission so as to enable the latter to pay a higher rate of fees than the " B " class stations ; (2) that the " B " class stations should receive a portion of the listeners' licence fees . . to enable them to pay a reasonablerate of fees; an<;l ·· .

(3) that the Government, out of the listeners' licence fees, should make payments to the "B" class stations to <:mable them to pay reasonable fees and that to the licence fee paid to the Government by each " B " class station a sum should be added equivalent to the advance so made. The second of these suggestions was. abandoned after the Attorney-General had stated in Parliament that such a proposal would not be considered by the Government.

This Commission does not recommend that any of these proposals should be adopted. They involve directly or indirectly some form of subsidy o';lt .of public funds .to the " class stations and they are, at least indirectly, a means of ass1stmg the .AssoCiatlo?-. to maintain their charges. The third proposal would. place G?vef!lment m a positiOn and might inYolve the Government in many and difficult and possible disputes.

ARE " B " CLASS STATIONS A PUBLIC UTILITY ? At present and for some years to come the National Stations -tdequa.tely serve the public throughout Australia ; there are not of them. and not 1:ikely to for some years. It may be said that there are too many B class statwns, but m the opmwn of the

28

.Broadcasting Commission the '' B '' stations are now and ··will ·be tor some time to

?orne a necessary to the National Stations. At present there are only twelve wave lengths, 1.e., means of seiidmg programmes and forms of entertainment over the air, and to have the " B " stations giving additional music and entertainment is a definite service to the public. ·. The ''B class stations have the past materially in increasing

the re':enue whiCh comes from hsteners hcences; 1f these statwns had not been operating far fewer hcences would have been taken out. For some time to come this will continue. The large numbers of persons directly or indirectly employed in. the radio business owe their employment to a great extent to the " B" class stations. What is even more important is that the interests of the listening public, said to number over 1,676,000, require that the "B " stations should continue to oe efficient.

Another matter may be taken into ·consideration : A portion of the public· who deserve utm.ost sympathy and the sick.' the blind and the aged, in cases are supplied

With enJoyment and recreatwn by broadcastmg, and the "B" class statwns largely contribute to this. · •

" .. . The " B " class stations meet a public demand which at present and for some years the National Stations cannot fill. They bring within the reach of listeners valuable and interesting information, speeches, lectures and addresses on matters of public importance, and classical music of value from an educational point of view. It istrue that they operate in orderto make a profit, but none the less these stations render a useful public service.

PART Vll.-MISCELLANEOUS USERS OF MUSIC. AUSTRALASIAN STEAMSHIP OWNERS' FEDERATION. . The difficulties experienced and the views held by the Australasian Steamship Owners' Federation (representing about 80 per cent. of the Interstate tonnage on the coast of Australia)

were. explained by Mr. A. S. Elford, the Deputy Chairman. ' No claim for performing right fees was made until the end of 1930 when a claim was made by the Australasian Performing Right Association for an annual fee of lOs. 6d. for each 50 passengers for which a ship was licensed with a minimum of £5 5s. per annum. This claim was resisted, but in May, 1931, under pressure from the Australasian Performing Right Association, each Company or firm which was a member of the Federation agreed to take out a licence for the .performance .of m.usical works. ·

By the licence the ship-owner was granted a permit to publicly perform on his ships on the high seas and in all ports and places throughout the world all musical works for the time being in the repertoire of the Association and of the societies, unions or other similar bodies associated therewith, but the licence was not to extend to any performance at a concert or other entertainment Open to the public or for which a special fee was charged. The, ship-owner was to pay for each vessel licensed by the Board of Trade Passenger Certificate to carry 500 or less passengers the sum of £5 5s. and for each vessel licensed to carry more than 500 passengers the sum of £5 5s. plus an additional 1 Os. 6d. for each 50 passengers in excess of 5QO (any number less than 50 to count as 50). The ship-owner, as far as is reasonably practicable, was to supply to the Association at the end of each round voyage a complete set of the programmes of music

performed and songs sung on board the ship during the voyage by any band, instrumentalist or person, being members of the ship's company. On any breach of tb.e conditions of the licence the Association was empowered to forthwith annul the licence. The licence was to continue for one year and thereafter from year to year until notice of determination was given by either

party. Under this arrangement the tobal fees ·paid to the Australasian Performing Right Association by the members of the Federation amount to about £72 lOs. per annum. Some ships enjoy a pianist and/or one or more violinists; in others stewards play for short periods; in others only a gramophone is used. No music is played while the ship is in port and on an average a ship is in port about eleven out of 22 days. No charge is made to the passengers for the music supplied and, except that the music may be said to make the ship more attractive to intending passengers, the music is not performed for profit.

Under the licence a ship is bound, as far as practicable, to make complete returns of all music performed. In practice it is found to be impossible to comply with such a condition. At the present time none of bhe ships by means of a radio set re-di:ffuse broadcasted music, but, ifa ship should do so, the licence treats such re-di:ffusion as a performance.

A similar form of licence is also granted by the Australasian Performing Right Association to four of the ships trading between Australia and New Zealand.

29

. :r'he me1nbers of the Federation urge that the licence should be for an extended perwd' and :U?t merely twelve mouths, that returns. of music performed should not he ma_de a of hcence, .an.d form of lists. should be ms.de available by the Australasian Performmg Right Assocmtwn mdiCatmg what musiCal works it controls. !he suggestion put forward by ship-owners (and also by proprietors of hotels, restaurants, and.pnvate that the music performed is not for profit may, in law, be unsound .. of given in order to attract passengers, customers and others to use the ship or prennses and Indirectly may be said to be for profit. · CATERING INDUSTRIES. . . The Victorian Chamber of Catering Industries represents hotels and cafes employing hotels, cafes, and boarding-houses using mechanical instruments such as gramophones and radw sets, and hotels and cafes which let rooms to outside persons for social purposes. It is contended that none of these establishments make a profit from the use of musical works, music being played only for the benefit of guests, .that the cga.cges mac1e py Australasian Performing Right Association are excessive and are not made on any uniform basis, and that in tne case of rooms let for social purposes the proprietor has no knowledge whether any and, if so, what music will be performed. There is much force in some of these contentions and the explanations offered to this Commission on behalf of the Australasian Performing Right Association do not entirely remove the difficulties suggested. CINEMATOGRAPH EXHIBITORS. Prior to 1926 no demands were made on Cinematograph Exhibitors for performing in respect of music played. Practically every city and suburban and some country _picture theatres employed orchestras and most country theatres employed a pianist .. At that time practically all pictures were silent and the music was played as an accompaniment to the In 1926 the average performances lasted from two and a half to three hours and about 40 to 50 items of music were played per performance. In that year the first claim for performing right fees was made by the Australasian Performing Right Association and was at first resisted by the exhibitors. Ultimately an agreement (Exhibit 87) was arrived at in August, 1926, containing the following terms:-(1) City Theatres . . . . . . 45s. per 100 seats per annum. Where the annual revenue shows an average weekly gross takings of £1,000 or .over, the rate to be 90s. per 100 seats per annum. (2) Suburban and. Country Theatres-6 nights per week and matinee 5 nights per week and matinee · 4 nights per week and matinee 3 nights per week: and matinee 2 nights per week and matinee 1 night per week and matinee Minimum fee Period of contract .. The following coneessions were allowed:-25s. per 100 seats per annum. 21s. per 100 seats per annum. 18s. 6d. pe.c 100 seats per annum. 16s. per 100 seats per annum. 12s. 6d. per 100 seats per annum. 7s. 6d. per 100 seats per annum. £1 5s. per annum. Two years from 1st January, 1926. (3) Where it can be shown that the attendance is only one-third of the capacity, the Australasian Performing Right Association is prepared to accept a fee representing two-thirds of capacity, in other words, credit of (4) Where it can be shown by documentary evidence. (l;>Y IS meant of books, a certificate from an accountant, or s1nnlar eVIdence) that a p1cture show or dance hall is being run at a loss, the Australasian Association is prepared to make the fee one-half (!) of the capacity. This agreement resulted from conferences held under the of Percy Deane of the Prime Minister's Department, and the evidence has satisfied this Commission that the exhibitors only agreed to the Australasian Performing Right Association's terms under pressure from the Australasian Performing Right Association. . In 1928, the Australasian Performing Right Association introduc.ed a new and incrt:ased tariff of charges which was only made applicable to picture theatres whiCh busmess in and after 1928 and to such picture theatres as had failed to fulfil the conditiOns Imposed by the 1926 agreement.

30

, · Iri the case of all other picture theatres, the 1926 rates and conditions were continued, but the concessions above-mentioned were withdrawn. · .

'After 1926, sound pictures, in many of which music was incorporated, practically replaced silent pictures. By 1932, some of the larger city picture theatres employed ·an orchestra or used an orchestras had disappeared from many city and town and l:rom all suburban theatres, and. m most a few used for a brief space of time. In most cases

the only music was that mcorporated m the piCture. · _ ..

A careful check has been placed upon a large number of pictures in 1932, to ascertain what number of hours is occupied with music, and the following list (Exhibit 88) is typical of the charges made by the Australasian Performing Right Association in 1926 and 1932:-ANNUALLY.

Music Pieces

. Annual

Number of Aggregate Music Public Australasian Performance. Performances. ...Quantity. Used. Renderings. Performing Right Association Fee.

£ s. d.

In 1926-Theatre of 1,500 seats-Average 50 pieces per week . . . . 3 hours 312 936 hours 2,600 15,600 18 15 0

In 1932-Average 8 pieces per week .. 30 minutes 312 156 hours 416 2,496 · Still the same

fee

. The result of the altered tariff and conditions is that in the one town there may be two picture theatres with the same seating capacity-one paying the Australasian Performing Right Association (say) £18 per annum under the 1926 tariff and the other £28 under the tariff of 1928. . · The following list (Exhibit 166) gives the gross revenue derived by the Australasian Performing Right Association from motion picture exhibitors: £7,622 £7,959 (1928), £9;333 (1929), £9,475 (1930) , £9,989 (I93I). The figures for I932 are not yet available: _

·· _ · . The serious depression through which Australia is passing has seriously affected the

picture . exhibitors, especially those with suburban and country the'ltres, and they complain that it is inequitable that, in view of the greatly reduced hours of music performed and the falling off of their receipts, they should have to pay the same rates in 1932 as we're imposed in 1926. _ Further it is contended that there was no justification for the increased charges made in 1928.

The picture exhibitors also claim that the charges rn,ade to their theatres are out of proportion to those made by the Australasian Performing Right Association to legitimate theatres. To legitimate theatres the charge is 8s. 4d. per IOO seats, to vaudeville theatres 6s. 3d. per 100· seats and to picture theatres 25s. per IOO seats.

. The answer made · by the Australasian Performing Right Association is that the legitimate theatres mostly use dramatico-musical works (whichare not within the Australasian Performing Right Association's repertoire) and the music performed at vaudeville theatres is mostly owned by the performing artists.

A further reason given for increasing the charges to picture theatres is the ·expense of collecting fees from many of the proprietors of the smaller theatres and the increa_sed taxation on fees collected. The managing director of two of the largest theatres m Sydney gave the following figtires :- ,

Per Annum.

£ s. d.

No. I Theatre (as Vaude·ville) paid . 3 17 9

.No. I Theatre (as Picture Theatre) paid 29 9 10

No.2 Theatre (as Vaudeville) paid , 3 I7 10

·No. 2 Theatre (as Picture Theatre) paid 37 8 IO

From No. 2 Theatre the Australasian Performing Right Association claims £74 I7s. Sd. per annum for I932. .

· · The scale of charges made by the Australian Association for . picture theatres, dance halls and restaurants and similar establishments appears to be much lower than the scale adopted by the Performing Hight Society in Great Britain and is said to be even lower made by some of the Continental Societies (see Exhibit I5I), but in the latter cases It IS whether the figures supplied are complete. The figures in I5I were m I930

and there is no evidence as to what are the present charges made m Great Bntam and on the Continent. ·

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1193

. .the form of licence granted by the Performing Right Association, the

picture exhibitors are bound to supply regular hsts of mus1c performed with details of titles authors, composers, &c. Until the film shown, the exhibitor, in most case& does not and cannot ascertain .with all:y certainty what is or portions of mnaic ar; incorporated in the film and the. details reqmred .by .the Australasian . Right Association, as a rule,

cann.ot be supplied. The film d1stnbutors are supplied w1th cue sheets giving some of these detmls, but most exhibitors are unable to obtain these cue sheets .

. The complain that they have to pay two fees in respect of

copyright music mcorporated m films- . ··

(1) a recording fee which is paid by the producer of the film to the author or composer or publisher and· is passed on to the exhibitor in an added price for the film, and (2) a performing fee to the author, composer or publisher. Both fees, they say, are for performing the same work.

. In the state of the la'Y these fees are payable to the author, composer or

publiSher; a recordmg and a performmg nght have been for years reserved by law to the author or composer.

The exhibitors contend that the law should be altered and the performing fee be abolished. To do so would involve a very radical change in the law of copyright, would probably be in conflict with treaty obligations, and may, possibly, be inconsistent with the Imperial Copyright Act, as embodied in the Commonwealth Statute.

This Commission does not recommend legislation on those lines.

It was suggested by the picture exhibitors that, inas:much as recording fees are, as a rule, arranged between the produeers . and the owners of copyright when the film is being prepared, the S¥o}lle kind of arrangement can be made by the producer with regard to performing right fees.

The evidence before the Commission in support of this view is vague and far from satisfactory and, from a cable received from the Performing Right Society (Exhibit 157), it appears that such a scheme is impracticable.

It was -also contended that perfornilng right fees on films having copyright music incorporated in them should be collected by the Australasian Perfo:rmi.llg Right Association from the importers of the filrns. It is said that the importer has or can obtain full information as to the music incorporated, can assess the performing right fees payable, and can pa.ss on the fee to the exhibitor.

The evidence on these points is not clear. The importers have had no opportunity of placing their views before the Commission and, as the importer would have no means of lmowing how often a film .. will· be used by exhibitors, it is not easy to see how the importer or the Australasian Performing Right Association could assess the performing fee payable.

Under the circumstances the Commission does not recommend that any such arrangement be made compulsory.

The Australasian Performing Right Association has stated that it will no longer confer with any of the associations representing cinematograph exhibitors, with the result that an agreement. the classes of is .. is

that this 1s so, particularly m view of the conCiha attitude of tne exhibitors before this Commission. ··

The Australasian Performing Right Association will only deal with individual exhibitors, who contend that they have no means of resisting a monopoly such as the Australasian Performing Right Association.

The difficulties o£ the .exhibitor, as appears by the evidence, are great : he often does not know and frequently cannot ascertain .what or .parts of a musical are in the film he is showing; he has no means of what or IS c?v:ered by copyrig!lt; many .of the

films have no music incorporated m them; he IS met With c1arms for performmg fees whiCh he has no means of disputing; and he is faced with charges which he contends are not arrived at on any settled basis ..

.[

32

Under these circumstances it is not unreasonable that the exhibitors should demand that a tribunal should be constituted and/or that the Australasian ,Performing Right Association be compelled to file lists of charges which can be reviewed, :when necessary, by the

Muuster.

. If a f?rm of licence arrived at by agreement or determined by some tribunal, under which. ,hcensee :vas pernntted to use the whole of the Australasian Performing Right AssoCiatiOns repertoire for a reasonable annual fee and under reasonable conditions and the term of the licence was for two to three years, many of the difficulties now experienced by exhibitors would be removed. ·

THE LITERARY INSTITUTE CO-OPERATIVE SOCIETY OF NEW SOUTH WALES.

This Society represents schools of art, literary institutes, mechanics' institutes and similar organizations throughout New South Wales, to which members pay small subscriptions. The halls owned, or leased by the members are used for educational purposes and entertainments, any profit made being used for the support of the hall. The halls are frequently used for entertainments for charit!l.ble purposes and the net returns are given to the particular charity. No member benefits pecuniarily directly or from any form of entertainment.

Claims for performing fees were made by the Australasian Performing Right Association and forms of licences were sent to the various halls with charges varying from 25s. to £12 12s. per annum. ,

At a conference held in August, 1926, the Australasian Performing Right Association offered the following terms:--:-(a) a fiat rate of 5s. per annum for halls where entertainments were held for institute purposes;

(b) where a hall was let to outsiders, the hirer to pay performing right fees;

(c) returns of music used not to be insisted upon ; and ...

(d) the term of licence to be three years.

These terms "ere subsequently withdrawn by the Australasian Performing Right Association and individual owners of halls had to make their own

The charges made do not appear to be but, owing to the withdrawal of

Government s,ssistance, most of the halls are in need of funds and the use of halls in order to supplement their resources is most necessary at the present time.

There is very little evidence before the Commission as to the arrangements made in other States, but apparently similar licences on somewhat the same terms are insisted .p.pori by the Australasian Performing Right Association in Victoria, Queensland and ·South Australia.

MUNICIPAL AND SHIRE ASSOCIATIONS.

The Municipal and Shire Associations of New South Wales represent 174 out of a total of 180 Municipal Councils and all the Shire Councils, and are interested in, the questions before this Commission so far as they relate to musical works performed at public ·entertainments in municipal and shire halls.

In the submissions to this Commission by these Associations it is claimed that these halls are public both in their use and in their ownership and, insofar as they use music, they are a large {actor. in P.romoting a for music on the part of the public an.d serve a in commumty hfe. In many mstances the halls are used for entertammeDts at whiCh music is performed without charge for the hall to the user or the public; in others for charitable purposes and without charge ; in others a charge is made for the use of the hall.

Up to 1926 no claim for performing. fees was b.ut in that. a circuhr notice

(Exhibit 103) was issued by the Right Assomatwn to and

similar of entertainment pomti_Ug out tha.t the musiC. contr?lled by the AssomatiO? not be used Ill public except at places hcensed by It and enclosmg a hst of some of the AssociatiOn s members and a few of their most popular and recent works. The noticealso included a form of licence and a demand for an annual licence fee of £3 15s.

33 1195

This was followed by a circular letter (Exhibit 104) threatening immediate legal proceedings and l,>Y: many protests at annual conferences of the Municipal and Shire Associations. The compiamts made are not based on the ground that the charge is excessive but that it should not be made at all. . '

It appears that only about twenty municipal and shire halls throughout the Common wealth have taken out licences, and to them a charge is made by the Australasian Performing Right Association varying from 25s. to 50s. per annum.

THE RETURNED SAILORS AND SOLDIERS' IMPERIAL LEAGUE OF AUSTRALIA (NEW SOUTH WALES BRANCH).

The League has issued small pamphlets for use at gatherings of returned soldiers containing songs which, during and since the war, had been widely used by soldiers of the Australian Imperial Forces and the British Army.

In August, 1930, a firm of solicitors wrote alleging that the League was therebv infringing the copyright of certain clients and the League was, in consequence; unable to c"ontinue the publication and issue of these pamphlets.

It appeared that the only question was one of literary copyright, and Counsel for the League conceded that such a question did not come within the scope of this Commission.

In cases where claims for performing fees have been made or suggested by the Australasian Performing Right Association, only a nominal fee has been claimed and the Australasian Performing Right Association has always acted fairly and reasonably.

RETAIL TRADERS.

The views of the retail traders were phced before this Commission by the Retail Traders, Association of New South Wales, supported by similar associations in Adelaide, Victoria and Brisbane. For a considerable time p.ifficulties have existed between the retail traders and the Australasian Performing Right Association, and one of the principal complaintR made is not so much that the present charge8 demanded are excessive, that they may be increased at th{' option of the Australasian Performing Right Association. Again, it is said that there appears to be no settled or uniform basis for such charges. In fact, the Australasian Performing Right Association claims to work upon a more or less definite tariff except in special cases and in these an agreement is made. The retail traders further complain that the revenue collected from them cannot be satisfactorily distributed among authors and composers inasmuch as in most cases no returns of music performed are or, indeed, can be made.

Instances were given of the varying charges made by the Australasian Performing Right Association. Firm" A" uses music in its restaurant and has a dance hall and is charged £10 lOs. per annum. Firm" B" pays £10 lOs. per annum for music performed in its cafe, together with 5s. per performance for dances and similar functions (averaging in all from £8 15s. to £14 5s.

per annum). Firm " C" for the use of music for a restaurant and dance functions is charged 2 per cent. of the wages paid to musicians. Firm "D" pays 2 per cent. on musicians' wages and 5 per cent. on the rental value of its ballroom. Firm "E" pays £6 lOs. per annum as a flat rate.

Another complaint is that the form of licence (Exhibit 63) requires a return of music performed with details of titles, authors, composers, &c., and it is impossible for the owner 6f the premises to make these returns in many cases.

RELIGIOUS AND CHARITABLE BODIES. The Australasian Performing Right Association claims the right to charge churches and other places of worship for the performance of musical works as part of the service, but in fact makes no such charge at the present time. If, however, the service is broadcasted the broadcaster is called upon to pay a performing fee. It is most desirable, in the interests of che public, and particularly the sick, the blind and the aged,. that religious be broadcasted, and

it appears unreasonable that such broadcastmg should be ourdened With the payment of a performing fee. In the case of copcerts and entertainments for charitable purposes, not for profit to the performer, only a nominal performing fee is claimed and often no charge is demanded from the church authorities.

34

INDIVIDUALS.

Comparatively few members of the public have offered evidence or information to the Commission on their own behalf, although.every opportunity has been given to them to do so. In a limited number of cases complaints were made by individuaJs of the claims made and the methods adopted by the Australasian Performing Right Associabion, but, in most instances, the evidence disclosed either some misunderstanding as to the legal position of the Australasian Performing Right Association or some ill-considered actiori" on the part of the Australasian Performing Right Association's local agents or some more or less unimportant dispute which the Australasian Performing Right Association offered to deal with in a liberal spirit.

There is evidence that in a number of instances the Australasian Performing Right Association appears to have acted hastily and without reasonable consideration for the difficulties of some users of music, but in most of these cases the fault lay with local solicitors or agents. This is more or less unavoidable in the case of an organization such as the Australasian Performing Right Association with an office only in Sydney, and probably the relations between the Association and users of music would be improved if the Association maintained branches in other capital cities and instructed their local solicitors and agents to be more conciliatory in their dealings with users of music in public.

PART Vlli.-THE CANADIAN COPYRIGHT AMENDMENT-: ACT 1931. This Act was assented to on the lith June, 1931. It defines" performance" as meaning any acoustic representation of a work including a represent1,1.tion made by means of any 'mechanical instrument or by radio communication. It excepts from infringement performance by any church, college or school or by any religious, charitable or fraternal organization, provided such performance is given without private profit, and also the performance without private profit

of any musical work at any agricultural exhibition or fair held under authority.- · _ Section 10 provides that each association carrying on in Canada the busil\ess of acquiring copyrights of dramatico-musical works or musical works or of performing rignts therein, and which deals with granting of licences for the performance- of such works in which copyright subsists, shall file vvith the Minister at the Copyright Office-

( a) lists of all works claimed by such association; and (b) statements of all fees which the association proposes from time to time to collect as compensation for the grant of licences in respect of the . performance of such works. Sub-section 2 enables the Minister, after investigation and report by a Commissioner, to revise or otherwise prescribe the charges, if he is satisfied that the association exercising a substantial control of performmg rights unduly withholds the grant of licences or proposes to collect excessive fees or charges or otherwise conducts its operation in a manner deemed detrimental to the interests of the public. ·

Sub-section 3 enacts that no such association shall be entitled to collect any fees or charges for licences for the performance of works not specified in the above lists or to collect fees or charges in. excess of those specified in the statements filed or those revised or prescribed as aforesaid. . Mr. M. B. Duffy, the President of the Australian Federation of Broadcasting Stations, recently visited Canada, and, from inquiries there, he ascertained that the charges proposed to be made by the Canadian Performing Right Society under the Canadian Act of 1931 had

b4len referred to Mr. Justice Ewing for investigation and report. From newspaper extracts under date April, 1932 (Exhibit 138), it appears that t.his reference was made in consequence of protests made by some of the Canadian Broadcasting Stations against the charges proposed to be levied by the local society. As far as can be ascertained, Mr. Justice Ewing's report (if made) is not available to this Commission.

If legislation making the filing of lists of charges compulsory were to be considered, it probably be unwise to include a:r;d it would be better to confine the operatiOn of that part of the proposed Act to users In pubhc other than broadcasters. A charge based upon a percentage of revenue appears to be most applicable to the

Australian Broadcasting Commission. Charges formulated on a " per item " basis appear to be most applicable to the " B " class stations and the system of filing a list of. fees and charges could not conveniently be made applicable to every class of broadcasting statiOn. The charges, terms and conditions under which broadcasters may use musical works should be left to agreement, if possible, and, failing agreement, it may be necessary to have recourse to some form of tribunal to determine the matters in dispute.

35

1197

. . It would be. advisable, in proposed legislation, to include provisions which are not w1thm the Canadmn Act. It 1s not merely the fees or charges which are in dispute; the conditions, including the term, of the licences cause difficulty, and questions such as these are not dealt with by the Canadian Act. Unless some method of determining such matters as

these be adopted, the present deadlock between providers and users generally may continue.

PART IX.-THE ASSOCIATED RECORD MANUFACTURERS. GENERALLY. After notices had appeared in. the English referring to acjion being

taken by record manufacturers and 1t appeared that d1sputes had ansen between broadcastinO' stations and certain record manufacturers in Australia, Letters Patevt dated the lOth 1932, were issued referring certain matters to this Commission, the terms of which have already been set out. .

The record manufacturers in question are the Gramophone Company Limited, the Parlophone Company Limited (both of which are English companies registered in New South Wales as foteign companies), and the Columbia Graphophone (Australia) Limited (which was h'lcorporated underthe Companies Act (New South Wales) 1899). The whole of the capital in

the last-named company (£100,000) is held by the Columbia Graphophone Company Limited of England. · three companies records ·in Australia under letters patent held by

the Colum.bm Graphophone (Australia) Limited and granted under the Commonwealth Patents Acts. In 1925 the Gramophone Company Limited opened a factory at Erskineville and in 1926 a factory was established at Homebush by the Columbia Graphophone (Australia) Limited, the total cost of both factories being about £300,000. In August, 1931, a merger between the three

companies became effective in Australia and since then the whole of the records made by them have been manufactured at and placed on the market from the Homebush factory. From 1925 to 1931 these three companies have paid in wages and salaries about £500,000 and at the present time the average number of employees is between 500 and 550.

This Commission was invited to inspect the Homebush factory, but it was not considered necessary to do so because it was admitted by all concerned that the records manufactured and sold by these companies were equal to the best records made in any part of the world and recorded music of the very highest quality. In fact, it is contended by the broadcasting .stations that the records are so good and the music recorded is so excellent that the broadcasting stations

must have them or impo:r:,ted records of a similar quality in order to carry on broadcasting efficiently and with satisfaction to the public. The companies manufacture in Australia all the records they sell, only importing the necessary matrices from England, and their catalogues include on an average about 10,000 records. The records are sold through distributors and agents. •

From information supplied to this Commission (see Exhibits 162, 163 and 165), the following facts appear :-that the Electric and Musical Industries Limited (an English Company holding. all the shares in the Gramophone Company Limited and the Columbia Graphophone Company Limited) had in September, 1932, an issued capital of £6,265,749; that

the Gramophone Company Limited had made profits increasing from £153,000 in 19ll to £760,000 in 1927, and paid dividends rising from 15 per cent. in 1923 to

40 per cent. in 1927, the capital having increased from £60,000 in 1913 to in 1927;

and that the Columbia Graphophone Company Limited had made profits increasing from £5&,000 in 1923 to £150,000 in 1926. From 1928 the following appear to be dividends paid by these two companies: The Columbia Graphophone Company Limited 60 per cent. (1928), 45 per cent. (1929) and 40 per cent. (1930); The Gramophone Company Limited 55 per cent. (1928), 60 per

cent. (1929) and 20 per cent. (1930). It is reasonable to infer that some of these profits were earned from the sales of records in Australia up to the time when the Associated Manufacturers began operations. The companies, however, operating in Australia have not been so fortunate. Exhibit Ill

gives of the and los.ses from 1926 onwards. The Columbia

(Australia) Linnted sustamed substantial losses from 1927 to 1931, except that m 1929 a comparatively small profit was made. The Gramophone Company Limited showed a total net loss of a very considerable amount up to June, 1932, and the Parlophone Company Limited only made a small profit in 1927 and sustained heavy losses in all other years up to 1932.

For some years and up to the present time purchasers in Australia of records have been almost entirely dependent on those manufactured here, the heavy duty and charges and to some extent the rate of exchange having kept imported records off the market.

36

Up to the end of 1932 the only makers in competition with these Companies for the local market were the Moulded Products Limited of Melbourne (the local makers of the " Decca " re.cords), the Re:ord 9ompany of Sydney, and the Brunswick Company of America a fa?tory m Austraha. first company manufactured records only as a secondary part

of Its busmess and the Commisswn has been informed that its record factory has been recently destroyed by fire. The Klippel Record Company has gone into liquidation and the Brunswick Company of America has practically ceased to make records. . It is fr?m the evidence !hat the records by these three :rrfakers, though of good quahty, were mfenor to those made by the compames manufacturing at Homebush, and the music recorded was not of the same high class nor so varied. .

It has not been seriously disputed that good records are and for some time must be a vital adjunct to broadcasting generally and particularly to the " B " class stations and that, unless good records can be purchased in Australia or can be imported, broadcasting must be far from satisfactory to the listening public. The evidence before this Commission makes that clear.

The Associated Manufacturers employ artists living in Australia for recording purposes, and between 1927 and 1932 two of these companies have paid to such artists nearly £20,000 (see Exhibit 133).

With the exception of a sum of £3,893. remitted by the Parlophone Company Limited, none of the profits made by these companies have been sent to England, such profits as were made being retained in Australia for the purposes of their business.

THE CASE FOR MANUFACTURERS.

The case put forward by the Associated Manufacturers, briefly stated, is that the sales of their records have seriously fallen off, and increasingly so as broadcasting became more. universal and more efficient, and that this is due to the fact that all stations, and the " B " class stations in particular, have been and are broadcasting records from early in the morning until late at night to the public who would otherwise be expected to purchase records.

The complaint is not only that records are being broadcasted every day and night in the year, but that a record is broadcasted so often that the public become weary of it and will not purchase. That there has been a very serious decrease 'in the sales of the Companies' records since 1927 has been proved beyond doubt. Particulars supplied by all three Companies (Exhibits 111 and 134) show a remarkable falling off in sales, and figures furnished by H():ffnung and Company Limited, the principal distributors for the Companies (Exhibit 120), show a falling off of 79. 76 per cent. between the figures for 1927 and those of 1931. · ·

Other evidence before this Commission leaves no room for doubt as to the marked loss of business. The real question is to what cause or causes this should be attributed. One thing is clear and that is that the losses are in no way due to inefficient/·management or business methods.

THE BAN ON BROADCASTING.

Some time before November, 1931, the Associated Manufacturers of records had satisfied themselves that the falling off in sales was mainly, if not entirely, due to the indiscriminate use of their records by broadcasters, and on the 17th November, 1931, they issued to all broadcasting stations in Australia and New Zealand a written notice (Exhibit 116) forbidding the use. of their records for broadcasting purposes. · ·

The terms of the notice are wide enough to include such of their records as had already been sold to the broadcasters and that this was intended is made clear by the .evidence of Mr. vV. A. Donner, the principal representative of the Companies. . This ban came as a surprise to the broadcasting stations. They had; for all practical purposes been dependent on these Companies for their supplies of records and the cutting off of these placed them 3: serious difficulty. between the CoJ?-panies,. the

Australian Broadcasting Comnnsswn, and the Australian FederatiOn of Broadcastmg Statwns followed and were continued up to October. 1932. An agreement (Exhibit 75) was arrived at between the Broadcasting Commission and the manufacturers on the 9th September, 1932, for a period of six although no fresh

arrangement has been entered into, the terms of that agreement are still bemg ?bserved. Under this the is given permission to broadcast the. Compames' records

certain restnctwns and conditiOns as to the frequency of the use of records, and the announcmg of the title, &c., of the record used.

1199 37

. The between the Manufacturers and the Federation were protracted and,

a representative of the Manufacturers left Australia, were conducted in a far from friendly

spmt. After his departure the relations between the parties became more cordial and drafts of were interchanged. At first the Manufacturers insisted on payment of a

performmg . nght fee claimed by them, but during the later stages of the negotiations this claim was not pressed. -

-It is not necessary to determine what degree of blame (if any) is to be attributed to either party the failure of negotiations. _It is sufficient to-state that the Manufacturers, believing their loss of trade was largely due to the methods of broadcasting by the "B" class stations,

illSisted upon what they regarded !:LS reasonable conditions and restrictions, and the F ederation showed a willingness to co-operate as far as possible with the Manufacturers in maintaining the success of the latter's trade. · - . August, 1932, a draft agreement was prepared, containing suggestions by both parties

(Exhibit 124), which appears to go a long way towards providing reasonable protection to the Manufacturers, and the Federation (on behalf of practically the whole of the" B" class stations) expressed before this Commission its willingness to enter into an agreement on the terms of that draft or to accept the terms of . the agreement made with the Broadcasting Commission.

- In October, 1932, the Manufacturers refused to enter into any agreement with any " B " class station and withdrew from further negotiation. .

- At. one stage of the evidence the Associated Manufacturers stated that they were only willing to make an agreement with a limited number of "B" class stations to be selected by them, and towards the close of the Commission they offered to enter into an agreement -in substantially the same terms as the agreement with the Broadcasting Commission for the term

of six months certain with such genuine " B " class country stations as are a benefit to .residents in parts of beyond the effective reach of the National Stations, subject to these

conditions- ·- _ - ·

(a) the present hours of broadcasting of records must not be increased; _ -(b) 'the agreement to be terminated on short notice in the event of an increase of the power of the stations, and (c) the legal rights and remedies of the Manufacturers to remain as they are at present. With regard to the -other "B" class stations, the Manufa.cturers regard them as being in an entirely different category and are unable to offer any concessions.

During the later stages of the negotiations there appeared to be very little in dispute between the parties, and it is greatly to be regretted that an agreement was not arrived at. -· What is material for the purposes of this Coinmission is that, after protracted negotiations, the parties have been unable to come to an agreement on matters which are so vital to each of them.

There is no evidence.as to the effect of the ban on the sales of records since Novem-ber, 1931. The Manufacturers say that it has not been sufficiently long in force to judge of its effect, but it might reasonably be expected that, in the course of some twelve months, the ban, if effective, would have incre[J.sed the sales.

When the ban was issued in November, 1931, the records manufactured and held in stock were not marked with a restrictive . notice and were issued without such mark to distributors, with an intimation, however, that the manufacturers . did not wish them to be used for broadcasting. Some. of these records reached the broadcasters.

All new releases were marked with the ban and, as existing stocks of other records became exhausted, the restrictive label was attached to repeat orders. The notice containing the ban is put on the record as part of the process of manufacture.

CONCERTED ACTION.

The Associated Manufacturers in Australia state that they are not directly acting in concert with the English and foreign manufacturing companies in placing this ban on their records, and that they have been left at liberty to take such action as may be necessary to protect their interests under the conditions prevailing in Australia. This is .probably but, fr?m

such information as has been obtained of the action taken by the EngliSh and foreign Compames, and from the evidence before this Commission, it is clear that action has been taken within and without Australia which is common in its nature and has the same objects, with the result that practically almost all records of high quality and recording the best music are or may be placed

under a ban so far, at any rate, as broadcasting is concerned.

38

THE AUSTRALIAN BROADCASTING COMMISSION. The attitude of the Australian Broadcasting Commission towards the Associated Record Manufacturers is that any difference should be adjusted as far as possible by private bargaining. Since September, 1932, these bodies have been acting under an agreement which terminated in February, 1933, but the terms are still being observed. Neither party appears to contemplate difficulty in continuing the present agreement or formulating a fresh one. . •.

The view taken by the Broadcasting Commission is that indiscriminate broadcasting of records is harmful to the manufacturers and that the latter are to a reasonable form of announcement of their records when used. Recognizing, as the Broadcasting Commission does, that recorded music is now and for some time to come must be a vital adjunct to broadcasting, that Commission is prepared to consider any reasonable restrictions suggested by the manufacturers as a means of safeguarding their industry.

So long as both pa;.iies continue to be reasonable, it is unlikely that either would have recourse to any tribunal which may be established, but, as it is clear that records of good music are essential to efficient broadcasting and the public are interested in the maintenance of broadcasting on a satisfactory basis, a tribunal may become necessary even in the case of the

National Stations if agreement be found impossible. So far as records are concerned, the National Stations are in a better position than that occupied by the " B " class stations. The former have a large revenue to draw upon if the importation of satisfactory records be expensive and possible, and the Broadcasting Commission

has not to pay duty on imported records. Possibly, also, the Commission could do its own recording. The Broadcasting Commission through its manager, .the late Mr. H. P. Williams, offered to limit the use of records to 3! hours per diem by each National Station in order to safeguard the interests of the manufacturers.

The Broadcasting Commission with its large revenue is able to employ human artists and orchestras to a far greater extent then the" B" class stations can afford to do. Nevertheless the Commission regards the records made by the Associated ManufactUrers as absolutely essential, and, if so, such records must pe even more essential to the "B" class stations.

THE " B " CLASS STATIONS.

There is evidence that, after th.e ban was placed upon the Associated Record Manufacturers' records, some of the stronger " B " class stations bought up a quantity of other records on the Australian market and a few stations imported records. By doing so and by making some of the records so avail::ble to the weaker stations, records of a kind were

obtainable by a number of the statwns for a time. A number of the more financial stations also had a fairly extensive library of records on hand, but, even so, regular supplies of fresh records were needed to keep the library up to date. The evidence, however, makes it clear that the records so obtained were not of the same quality as and embodied music of lower quality than those hitherto supplied bythe manufacturers, and the purchase of these was adopted to meet the emergency caused by the ban. · ·

It is said that the stations only require new releases and, as the total number of new releases per annu.m not exceed 1,00?, the by the is not of great

importance. This IS not so ; for effiCient broadcastmg the statwns must have newly manufactured records, not merely new releases. The position taken up by the Associated Manufacturers at the end of 1931 towards the "B" class stations may be fairly gathered from a letter written by the manufacturers to the Postmaster-General on the 15th January, 1932 (Exhibit 108). The manufacturers required the stations (inter alia)-

(1) to discontinue request items; (2) to announce the maker of the records and full particulars of title of record and that copyright is reserved ; (3) to broadcast only the manufacturers' records ; (4) to limit the number of times a record should be broadcasted; (5) to broadcast records issued before the 17th November, 1931 (the date of the ban)

not oftener than once a week ; and (6) to pay a reasonable charge for the right to broadcast the manufacturers' records.

39

The following table (Exhibit 131). shows the cost of importing records from England in November, 1932 :-LANDED COST OF RECORDS IMPORTED FROM ENGLAND ON VARYING ENGLISH PRICES.

English Invoice Prices. 6d. Is. Is. 6d. 2s. 2s. 6d. 31.

£ 8. d. £ 8. d. £ 8. d. £ 8. d. £ 8. d. £ 8. d.

100 records .. 210 0 5 0 0 7 10 0 10 0 0 12 10 0 15 0 0

Exchange at 25 per cent. .. 0 12 6 1 5 0 1 17 6 2 10 0 3 2 6 3 15 0

Duty .. .. . . 13 2 6 13 2 6 13 2 6 13 2 6 13 2 6 13 2 6

Primage .. . . . . 0 5 6 011 0 0 16 6 1 2 0 1 7 6 1 13 0

Sales tax .. . . 1 3 3 1 7 7 1 12 0 1 16 4 2 0 8 2 5 0

Freight, packing and inwards charges (estimated) .. 1 15 0 1 15 0 1 15 0 1 15 0 1 15 0 1 15 0

19 8 9 23 1 1 26 13 6 30 5 10 33 18 2 37 10 6

------ Each .. . . 3s. 10.65d. 4s. 7 .33d. 5s. 4.02d. 6s. 0. 70d. 6s. 9 .38d . 7s. 6.06d.

English Invoice Prices. 3s. 6d. tS. 4s. 6d. 5s. 5s. 6<1. 6s.

-------

£ 8. d. £ 8. d. £ 8. d. £ 8. d. £ 8. d. £ 8. d.

100 records . . .. 17 10 0 20 0 0 22 10 0 25 0 0 27 10 0 30 0 0

Exchange at 25 per cent. .. 4 7 6 5 0 0 5 12 6 6 5 0 6 17 6 710 0

Duty . . .. . . 13 2 6 13 2 6 13 2 6 14 8 9 15 17 7 17 6 6

Primage .. . . . . 1 18 6 2 4 0 2 9 6 2 15 0 3 0 6 3 6 0

Sales tax .. . . . . 2 9 5 2 13 9 2 18 1 3 4 4 3 10 9 3 17 2

Freight, packing and inwards charges (estimated) .. 1 15 0 1 15 0 1 15 0 1 15 0 1 15 0 1 15 0

41 211 44 15 3 48 7 7 53 8 1 58 11 4 63 14 8

Each .. . . 8s. 2. 75d. 8s. 11.43d. 9s. lOs. 8.17d. lis. 8.56d. 12s. 8.96d .

The Commission has been informed that the duty and customs charges on records are under consideration by the Tariff Board or by Parliament, but has no information as to decision has been arrived at. For the purposes of this Report, the Commission has assumed the continuance of the above charges on records imported from England, and that the duty and

other charges on records imported from the Continent and America are at least as high. This Commission has been requested to recommend to the appropriate Minister that records for broadcasting purposes only should be admitted free of duty and customs charges. This Commission declines to make any such recommendations-in its opinion the Minister should

be leH free to exercise such discretion as is vested in him, and this Report will be available to supply such information as this Commission has been able to obtain. The evidence makes it clear that, although some of the more important " B " class stations may be in a position to import records, most of them cannot do so, so long as tp.e duty and customs charges remain substantially as they were in November, 1932.

Further, it appears from the evidence of Mr. M. B. Duffy, who made inquiries in England, that it is improbable that records for broadcasting purposes can be imported from the main group of British Companies because of their Association, and that the smaller Companies will not export until the difficulties and disputes now existing are at an end.

ARE THE ASSOCIATED RECORD .MANUFACTURERS A MONOPOLY? It is ·said that to all intents and purposes the Associated Record Manufacturers have a monopoly of the records required for broadcasting and public use. Literally that is not so ; other records can, at a price, be imported from abroad, though such records are difficult to obtain and, if the ban be effectively imposed by manufacturers in England and on the Conbinent, these records be .of quali!y and will not the

besb music. Other manufacturers may start ill busilless ill Australia who may be willillg to supply records without a ban. . There are still a number of records in agents' hands in Australia, free of the ban, but they are becoming out of date and are diminishing in quantity.

Taking into consideration all the evidence before this Commission, it seems clear that the Associated Record Manufacturers practically control the manufacture and sale of almost all the records which are of such vital importance to those who wish to use recorded music in public and particularly to broadcasting generally.

In order, however, to justify a recommendation for legislative action it is not sufficient to establish that commercial concerns which supply, and those who for profit seek to use, recorded music cannot or will not arrange terms and conditions. It is only if the interests of the public at large or a considerable portion of the public call for legislative action that a recommendation should be made.

ADVERTISEMENT OF RECORDS BY BROADCASTING. It has been proved that for some considerable time after broadcasting became more or less general the makers and vendors of records looked . upon broadcasting as . a means of advertising their records over the air. Many vf them supplied their records for broadcasting free of charge and in many instances paid to have them broadcasted. There is a good deal of evidence to show that this opinion is still held by manyofthose interested in the sales of records.

In view of all the evidence, this Commission is satisfied that, even at the present time and under the conditions of broadcasting now prevailing, much and advertisement is given to records, so long as individual records are not played too frequ'ently r,easonable announcements are made of the make, title, &c., of the records used. · · ·· ·· · .

The outstanding andapparently insuperable difficulty is to bring about agreement between those who provide and those who seek to use in public the records as to what is reasonable regulation and restriction of the use of records.

ANNOUNCING OF RECORDS.

Although it is reasonable to require that the make, title, &c., of records sh01:rld be announced by the broadcaster so that the maker may receive the benefit of such an advertisement., there is great force in the objections raised by all stations (whether Nationa.l or "B" class) that frequent announcements spoil the performance and weary the listener. The " B '' class stations further urge, and with justi0e, that advertisers (and particularly those who provide sponsored sessions) object to constant announcement of the title, &c., of the records.

CLAIM BY THE ASSOCIATED RECORD MANUFACTURERS TO PERFORMING RIGHTS. During the negotiations with the "B" class stations and before this Comrp.ission, the Associated Manufacturers claimed to be entitled to performing rights in respect of their records and, although that claim is not being enforced at the present time, the manufacturers have declined to abandon this claim.

The claim is based upon (I) the right claimed as patentees to impose any condition upon the use of their records and (2) the right said to be conferred by Section 19 of the.Copyright Act. From the terms of the circular letter of the 17th November, and from the evidence of Mr. W, A. Donner, the representative of the Manufacturers, it is clear that the claim based upon patent rights extends not only to records to be sold, but to records already sold and purchased by the broadcasting stations.

Up to the present the claim to a perforz:ning right has _been upon the stations but the manufacturers reserve the nght to make a smular clarm upon all users m public of their 'records, From the English Press it appears that in England this claim to a performing right is being or is to be insisted upon against all users in public, whether broadcasters or not, and apparently the same claim is being made on the Continent.

For their claim as owners of copyright they rely on the definition of " copyright " given in Sections ·I and 2 of that Act, and lengthy arguments were addressed to the Commission in support of this view. Mr. Justice Lowe's opinion, as expressed Australasian Right Association v. 3DB Broadcasting Company 1929, V.L.R. 107, IS opposed to this contentiOn.

It is not for the Commission to determine points of law or decide the rights of parties. All that it is necessary to state is that, as at present advised, the Commission is by no means satisfied that the claim as copyright owners has been made out.

4:1

1203

. The undoubted result is that the manufacturers' claim, whatever it be based upon, subJects the to two performing fees in respect of the same musical work-one payable to the AustralasmB. Performing Right Association or other authors or composers and one to the maker of the record. The question is : should this be allowed to continue and, if not, should the manufacturer's claim be eliminated? An added burden such as this, which is of a serious

nature, may well make it much more difficult fm good music to reach the listening public.

. From a memorandum supplied by Sir W. ij:arrison Moore to the Federal Government, It that he and Mr. S·. G. Raymond, K.C., attended a Conference in October, 1927, with the President of the Committee of the MechanicatMusic Industry and Mr. J. V. A. Shields, of the 9olumbia Graphophone Company, who claimed to represent all the interests engaged in

m.akmg records. The meeting, apparently, waspreliminarytothe Rome Convention and was held With a view to discussing amendments of the existing Conventions or of the law.

The representatives of the industry expressed a doubt whether Section 19 of the Copyright Act (England) conferred the right of public performance and they desired that the Rome Convention should provide that the copyright of the record maker should include the right of public performance and that the English Act should be amended so as to rnake it clear that the right of public performance of the record was in the maker of it.

As Sir W. Harrison Moore points out, the subject is complicated by the fact that the copyright of reproduction may be in one person and the right of public performance in another. To vest in the maker of the record, who derives his power from A, a right of public performance, may be to derogate from the right of B, who has been no party to the transaction and derives

no benefit. from it. ·

Whatever views may have been placed before the Rome Convention by or on behalf of the manufacturers of records, no privilege appears to be conferred nor any form of protection provided by that or any earlier Convention in respect of any right claimed by the manufacturer. Any right to charge a performing fee or to impose conditions on user must have its origin under the law to Copyright or Patents. ,

If the contention of the record manufacturers be sound (and it is by no means clear that it is), there can exist two performing rights in the same musical work-one in the author or composer or in the Australasian Performing Right Association and one in the manufacturer. The creator of the music is the author and/or composer; the manufacturer merely makes the record which reproduces the music. It is not unreasonably suggested that, if there ought to be only one

performing right in a musical work, the creator should possess it and not the maker of the mechanical contrivance. . It is said that the principle underlying Copyright is that the creator of the work should be rewarded for the skill and talents shown in the creation of the work and be protected against the use of his work without his confl.ent. One of the most valuable privileges given to the creator

of the work is the right of performance. The record maker is granted protection for the article he manufactures, but was it intended that, by a grant of " Copyright ", he should also be given a right of performance of the work incorporated in his record? It would apparently lead to extraordinary results if

Section 19 has given that right to the make;r. The Commission is informed that litigation is pending in Great Britain in which this question will arise for decision, but the Commission considers that legislation by the Commonwealth Parliament is necessary in order to make the legal position clear.

THE VALUE OF THE ASSOCIATED MANUFACTURERS' RECORDS. It is clear that the records put upon the market by the Associated Manufacturers enable the public, by means of broadcasting, to hear the :finest artists and the best orchestral and music in the -world. In a country like Australia, the general body of the public would otherwise have no opportunity of ··listening to music of so high a character.

This should be stated in fairness to the manufacturers and should entitle their claims and interests to receive reasonable consideration. Do not, however, these considerations also show how valuable· to the public broadcastii_lg, whether by National or "B" class stations, has become, and do they not establish the necessity or, at any rate, the advisability in the interest of the community for the maintenance of

broadcasting stations 1

42

If the :providers and the broadcasting users of these records cannot agree, ought not there to be some tnbtmal to determine what are reasonable terms and conditions? those terms and conditions are to be must be left to the tribunal, if established, but, at present, there are three important matters which would have to be considered-

( 1) the frequency of broadcasting particular records ; (2) the method of announcing the make, title, &c., of the record ; and (3) the period to be covered by any award.

. All broadcasting stations urge (and with justification) that they cannot carry on their busmess unless any agreement entered mto or any award made be for at least two or three years.

REVOCATION OF PATENTS.

The records sold by the Associated Manufacturers are made under patents held by the Graphophone (Australia) Limited and it is said that the patentee, by attaching

conditions to the use of the patented article whereby trade or industry in Australia is unfairly prejudiced, has brought himself within Section 87 of the Patents Act.

If this contention be sound, Section 87 provides a remedy and requires no amendment, except possibly to provide that" any person interested" (in sub-section I) -includes the. Attorney­ General acting on behalf of the public.

RECORDS USED IN PUBLIC GENERALLY. From the Press it appears that the leading record manufacturers in Great Britain and on the Continent have prohibited or are likely to prohibit or regulate the use of their records in public generally and are not confining their actions to broadcasting. There is no evidence. however, that in the Commonwealth the manufacturers are likely to prohibit or restrict the .

general use of their records in public. So far it is only against the Broadcasting Stations that they have taken or threatened action.

CAUSES OF DISPUTE.

There has not been, and there is no probability that there will be, any difficulty caused by the price charged for the manufacturers' records. Considering the very high quality of these records, it is not suggested that the price is unfair. The disputes are confined to questions relating to the methods of user of the records.

PART X.-TRIBUNAL.

The claim that some form of tribunal should be constituted finally to determine disputes is supported by every class of user and it is based on clearly established facts. They cannot carry on their business and cater for the public without music; practically all music required is) or is claimed to be, under the control of the Australasian Performing Right Association ; the

Australasian Performing Right Association can demand any terms and conditions it chooses and the user· must comply or close down his business. The answer made is that a tribunal is unnecessary because, it is said, the Australasian Performing Right Association has always been reasonable and is unlikely to change its policy. The reasonableness of their claims in the past is, however, much disputed; their future policy is necessarily uncertain. It is also urged that interference by a tribunal is an invasion of the right of contract. So it is, but the question is whether the interests of those who control most of the music should not be made to give way, to an extent at any rate, to the good of the people.

Failing agreement, some form of tribunal or compulsory arbitration also appears to be necessary to determine the disputes which have arisen or are likely to arise between the Associated Record Manufacturers on the one hand and Broadcasting Stations on the other. It is contrary to the interest of the public that these disputes should exist or should continue.

It may be said that the public are not interested to the same extent in the disputes between other classes of users of music and the Australian Association or the Record Manufacturers. ro an extent the public are interested-it is clearly to the advantage of the commrurity that music should be available in places where the people meet.

43 1205

. Aii; illustrating the marked interesif of the public' in broadcasting in Great Britain, the followmg figures are taken from the British Broadcasting Corporation Year Book 1933 :---!

31st December, 1923 31st December, 1924 31st December, 1925 31st December, 1926 31st December, 1927 31st December, 1928 ... 31st December, ].929 ..

31st December, 1930 .. 31st December, 1931 ..

LISTENERS' LICENCES.

31st December, 1932 (estimated)

580,380 1,140,119 1,645,207 2,178,447 2,395,174 2,628,392 2,956,736

3,411,910 4,330,735 5,000,000 •

Mr. M. B. Duffy recently made inquiries in America and there he learnt that the agreement made between the American Performing Right Association and the broadcasting stations was regarded by the latter as having been obtained by duress and that some of the important stations were considering making an application to have the American Association dissolved as

constituting a Ill.onopoly or to have some tribunal appointed to determine disputes in the future.

In Great Britiain he was informed that the British Broadcasting Commission was apparently satisfied with the agreement come to with the Performing Right Society (5 per cent. on revenue), •bu.t that the Music Users' Association was dissatisfied with the charges made by that Society, Was pressing for some form of tribunal, and was forming branches in other countries

with a view of obtaining protection from similar societies.

. . It has already been pointed out that before the House of Commons (England) Committee in 1930 the appointment of some form of tribunal was strongly urged by users of music in public. In his evidence, the late Mr. H. P. Williams stated that from information received from reliable he understood that in Germany and are determined by

the Courts fa1lmg an agreement between the Performmg AssociatiOns and the broadcasting stations.

In the Journal of Radio Law, to which reference has been made, mention is made of an Italian Statute, en8:cted just before the Rome Convention, providing for an Arbitration Commission to determine disputes between broadcasters and copyright owners. Reference is also made to an Act, passed in Norway after the Rome Convention, enabling the Minister to authorize broadcasting of a work and fix the amount of compensation due to the author.

This Collll:rlission has not had access to either of the above Statutes or means of testing the accuracy of the statements made by the JournaL It has been contended that a tribunal should be constituted somewhat on the lines of the Federal or State Arbitration Courts with analogous powers of determining disputes and binding

parties interested. There appear to be many objections to such a course being adopted. A Tribunal of that kind would require the creation of something of the nature of a permanent Court with some or all of its incidents-delay, expense, and the introduction of the spirit of litigation. If a

Tribunal is to be appointed, its methods and procedure should be as simple and inexpensive as possible ; it would probably be sufficient if any dispute between Associations were referred by the Minister for determination by some competent person. ·

Further, if the parties to disputes continue the reasonable and conciliatory attitude which has been so mar:k:ed before this Commission, there is every reason to suppose that only on occasions will it be necessary to refer disputes to the Tribunal. · Assuming that some person is to be nominated as an arbitrator with power to determine

disputes, various made as to how an arbitrator should be selected.

The President for the trme bemg m each State of the Institute of Chartered Accountants or similar Institute, the Solicitor-General, and the Registrar of Copyrights were referred to as nominators, as being outside the sphere of politics and therefore removed from pressure by the disputing parties.

To all of these suggestions there appear to be objections, and, if an arbitrator finally to determine disputes is to be appointed,. Co:nnTission that he should be nominated bv the Minister responsible for the admllllstratwn of the Copyright Act.

44

.

In support ?f the claim for a Tribunal it was strongly urged before this Commrssion that both "the Australasran Performing Right Association and the Associated Manufacturers of records were or appeared to be acting to the detriment of the public in the line of conduct which they b.ave pu.rsued. It must, however, be borne in mind. that the term "detriment to the public"

s not to the consuming public or _that interest of persons engaged in production ;hould drsregarded. It can never be m the mterests of consumers that any article of :lOJ?-Sumptwn should cease to be produced and distributed, as it might well be.. unless those engaged n rts production or distribution obtain fair remuneration for the capital employed and the labour (See the Attorney-General of the Commonwealth of Australia v. the Adelaide

;teamship Company Limited, 1913, A.C. 801.) ·

PART XI.-CONCLUSIONS.

The evidence before this Commission establishes: (a) the Australasian Performing Right Association is, to all intents and purposes, a super-monopoly controlling or claiming to control most of the music which users in public must use and is able to dictate its own terms; (b) That disputes have arisen and are likely to arise and continue between the

Australasian Performing Right Association and practically all classes of users of musical works in public ; .

(c) That at the present time and under present conditions the Associated Record Manufacturers practically control the Australian market for hig}l class. records incorporating the best. music and can impose such conditions as they think fit on records to be made available to users in public; (d) That under present conditions the broadcasting stations (both National and

"B" class) are dependent on the Associated Record Manufacturers for records reasonably required for broadcasting and without such records hr;oadcasting cannot be efficient ; (e) That disputes have arisen and are likely to arise and contirtife between the

Associated Record Manufacturers and the "B" class stations as to the terms and conditions on which the Manufacturers' records may be used f

use of records is only a. temporary arrangement and the Record Manufacturers are in a position to dictate their· own terms and conditions for future use of records ; and (g) That the public interest demands that harmonious relations should. be restored

and maintained between the above parties and that some form of tribunal should, failing agreement, determine the disputes between the abtwe parties.

For the purposes of this Report, the Commission has assumed that some form of tribunal .ay be regarded by Parliament as essential, and, for that reason, it may be unfair to express 1y definite opinion as to the reasonableness or otherwise of the charges claimed and the mditions sought to be imposed by the Australasian Performing Right Associ-ation and the ssociated Record Manufacturers.

All that the Commission is inclined to report is that, on the evidenee now befme it, the .nowing opinions may be expressed :-(I) The claims for payment of performing right fees made on the Australian Broadcasting Commission are excessive and the offer made by the

Commission, if increased to 6 per cent. of its revenue, would be reasonably fair. (2) The rates payable for 1932 the "B" class stations are reasona?ly fair. . (3) Substantially the other condrtwns of user offered by the AustralaSian Performmg

Right Associa:tion to both of stations are not unreasonable. . (4) Possibly some "B" class statwns m Queensland and other States are entrtled to special conditions or rates owing. atmospheric ..

(5) The charges made iri of. Prcture Theatres _and srmlla! places of

entertainment are excessrve, partrcularly the charges mtroduced m 1928, and the conditions relating to returns of music performed require modification. (6) The charges made to other users in public, such as ship-owners, hotels, restaurants, cafes, &c., may not be excessive, but they are not calculated on any re3!80nably

settled basis and, to an extent, justify the complaints made. The retu.rns of music demanded require some modification.

45 1207

(7) The conditions contained in the agreement between the Associated Manufacturers . of Records and the Australian Broadcasting Commission appear to be, on the whole, reasonable, but the terms should be offered to a11 "B" class stations. In the case of bhe smaller "B" class stations in the country, permission to

broadcast records witn greater frequency should be allowed. ( 8) The term of agreements or licences for the use of musical works and records by all classes of users in public should be from two to three years. . . If a Tribunal should be constituted, other and perhaps more satisfactory evidence may mdiCate that the above views require modification.

PART XH.-GENERALLY. THE INTERESTS OF THE PUBLIC.

When questions such as have been discussed before this Commission are under consideration, the!e may be a tendency to overlook the fact that authors, composers and publishers have rights wh1ch have been for long and are still recognized by law and that bhe performing right is one of the most valuable of such rights and is assignable. The right of authors, composers and

publishers, who individually cannot effectively protect their interests, to form organizations such as the Performing Right Society (England) and the Australasian Performing Right Association may be questioned by some, but that right has been well establishe'd and the necessity for such organizations, in the ip.terest both of the owners of copyright. and of users, has been recognized

by the Courts in Enghind. On the other hand, users of music in public have interests which must be taken into consideration. Manufacturers and vendors. of records have the right to make their own contracts, to determine the conditions under which their 11ecords may be used in public, and to carry on their business in their own way, but the interests of those who seek to use the records in public must not be overlooked. ·

If the disputes which have been the subject. of so much discussion before this Commission were 01;1ly differences between those who can supply and those who wish to use in public the musical works and records controlled by the fori;Iiler, it is unlikely that Parliament would interfere by legislation.

It is, if and when the true interests of the public are involved and the continuance of such disputes may be to the detriment, of the public, that Parliament may think fit to enact legislation necessary to compose differences which cannot be settled by agreement. That the community at large is prejudicially affected by the existence and continuance of disputes such as these is, in the opinion of this Commission, established by the evidence.

RECONSIDERATION OF PERFORMING RIGHTS. The law, as it now exists, relating to performing rights in dramatico-musical and musical works may require careful re-c,onsideration. SU,J.ce 1912 many changes have taken place which were not foreseen and have not in terms been provided for.

Broadcasting and mechanical methods of reproducing music have completely changed and increased the means whereby music becomes avai14tble to the user and to the public. The interest of the community in the reproduction of music by various means has increased with the benefits conferred on the public by such means.

In the opinion of many, claims to performing right have been made to an almost extreme extent. Instances such as the claims for performing fees in respect of relaying. by station-s, re-diffusion by loud-speakers or similar means,· performance of music for chantable and similar purposes, broadcasting of music forming part of a religious ser'?ce, and the use ?£

records in public, indicate how far svch claims have extended and they are likely to extend still further. In all or most of these matters the public are vitally interested and there appears to be a genuine demand for some alteration of the law or that the law should be made more clear.

Authors, composers and publishers are entitled to every consideration ; it is . thrm1:_gh them that. music is made available ; but it may be that their interests should be reconciled With those of the listening public. The record maker is not. the creator of the music the public desire to hear ; he makes the record and is entitled ·to payment for what he sells. Can he also fairly claim a performing

46

THE REVISED BERNE CONVENTION-ARTICLE 4. On behalf of the Australasian Performing Right Association it was contended that any form of legislation prescribing the compulsory filing of lists of works controlled or of charges to be made would be a breach of the Treaty obligations of the Commonwealth under the Revised

Berne Convention. It was said that such legislation would introduce formalities such as Article 4 prohibits. , ·

That these are formalities may not be disputed if they were to be a-pplied to an individual author, but, it is said, this Convention has not concerned itself with Associations which, by assignment from or acting as agents for authors, claim to protect the rights of a vast number of authors throughout the wodd ; it is the Association which, under the suggested legislation,

would have to file the lists and no compulsion is placed upon the author. It was strongly urged that the articles adopted by the Revised Berne Convention of 1908 are confined to authors and authors only, that the words ''or their lawful representatives" contained in the Convention of 1886-1896 had been omitted from the later Convention, and that an Association such as the Australasian Performing Right Association, which claims to be the assignee from authors, acquires no protection under and is given no privileges by the Revised Convention. The Rome Convention has made no material alteration so far as this point is concerned. .

Even if the Convention has given protection to assignees as weJl as authors, is the Australasian Performing Right Association such an assignee as is contemplated ? In law it is an assignee, but the assignment is for the specific purpose of collecting debts due to its assignors, and the Association is bound to account to them for moneys received on their behalf.

THE ROME CONVENTION.

Sir W. Harrison Moore, the Australian delegate to the Rome Convention, gave interesting and valuable evidence before this Commission. His statements and views, as expressed in his evidence and his reports made to the Government after his return from Rome, should be given the most careful consideration when the relations of the Commonwealth to the International

Conventions are under discussion by Parliament. According to Sir W. Harrison Moore, two principles (at least) underlay the Rome Convention-( I) National treatment, that is, no discrimination between Nationals; and

(2) The establishment of certain minimum rights to be enjoyed in each country by all countries of the Union, irrespective of any treatment to which people of any particular countty may be subjected by its own Government.

His views on the effec:, of the Conventions were apparently directed mainly to authors and composers and not so much to Associations such as the Australasian Petforming Right Association, but they should not be overlooked when the poJicy to be adopted by the Commonwealth is being considered.

So far as this Commission is in.formed, the Commonwealth has not ratified the Rome Convention. Article II (bis) referred to in Sir W. Harrison Moore's evidence and report and in Mr. S. G. Raymond's report is in the following terms:-

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing the communication of their works to the public by radio communication. (2) The National Legislations of the countries of the Union may regulate the conditions under which the right mentioned in the preceding paragraph shall

be exercised, but the effect of those conditions will be strictly limited to the countries which have put' them in force. Such conditions shall in 3:ny case prejudice the moral right (droit moral) of the author, nor the nght which belongs to the author to obtain an equitable which shall be

fixed, failing agreement, by the competent authority.

This article recognizes (what had been already established in Great Britain and Australia) that broadcasting is subject to the per!orming right. ·It also appears to that

the local Parliaments (so far as broadcastmg IS concerned) are competent by to regulate this right to some extent and to some form ?f or court for the

assessment of reasonable compensation, even m the case of the md1VIdual author . . It is said, however, that such legislation can only be made to apply to Nationals and not to authors generally.

47

1209

GENERAL EFFECT OF THE CONVENTIONS. Wh:;ttever e.ffect must. be to the vie.ws put forward as to the meaning and effect of the vanous arl1cles contamed m the International Conventions, no one has contended that the competence of the Commonwealth Parliament has been affected.

What has been suggested is that to pass legislation inconsistent vvith these articles would be a breach of the Commonwealth's Treaty obligations and that it would be inadvisable for Parliament so to legislate. As at present advised, this Commission is not satisfied that legislation making it compulsory for the Australasian Performing RightA.ssociation to :file lists of works anif cha .. :ges can be reg':l.rded as a breach of Treaty obligaHons.

IMPERIAL COPYRIGHT CONFERENCE, 1910. In 1910 an Imperial Copyright Conference was convened, at which the Dominions of the Commonwealth, Canada, New Zealand and the Union of South Africa and New' Foundland were represented. ·

In the Memorandum of the proceedings of that Conference (Exhibit 126), the President of the Board of Trade, after referring to the Berne Convention of 1887 (as amended by the Conference in Paris in 1896), pointed out that the Berlin Conference of 1908 provided a single document dealing with International Copyright and stated that one of the principal alterations proposed by the Berlin Conference was the entire abolition in international relations of what

are called "formalities" ; that is to say, there should be no necessity for registration or other formalities in order to obtain or retain copyright. He stated that two propositions would be placed before the Conference-(a) His Majesty's Government have come to the conclusion that it is of the highest

importance to obtain uniformity of legislation as regards Copyright througho:.1t the British Empire. (b) They consider i•1 highly important to obtain as high a degree cf uniformity as is reasonably practicable amongst the princip::tl nations of the world with

regard to International Copyright.

Taking these two points together, the Government considered it advisable to ratify the Berlin Convention if such course were practicable without any undue sacrifice of any important British interest. The Conference recommended that the Berlin Convention should be ratified by the Imperial Government on behalf of the various parts of the Empire, and, recognizing the urgent need of a new and uniform law of Copyright throughout the Empire, recommended that an Act dealing with all the essentials of Imperial Copyright Law should be passed by the

Imperial Parliament and that this Act should be expressed to extend to all the British possessions. It was further recommended that any self-governing Dominion adopting the new Act should be at liberty subsequently to withdraw from the Act and for that purpose to repeal it so far as it is operative in that Dominion, subject always to Treaty obligations and respect for existing rights, and that the legislature of any British possession, whether a self-governing

Dominion or not, to which the New Imperial Act extends, should have power to modify or add to any of its provisions in its application +o the possession, but, except so far as such modifications and additions relate to procedure anJ remedies, they should apply only to works the authors whereof are resident in the possession and to works :first published therein.

A draft bill for the consolidation and amendment of the Law of Copyright, embodying the conclusions arrived at by the Conference, was submitted and generally approved. The Berlin Convention was duly ratified as suggested and the British Copyright Act 1911 was enacted and was subsequently incorporated in the Schedule to the Commonwealth Copyright

Act 1912.

PART XID.-POWER OF PARLIAMENT.

It was contended that the Commonwealth Parliament, by adopting the Imperial Copyright Ac! 1911, no longer had unfettered .authority to on Copyright. and that its power to legislate was confined to such questwns as are left to 1t by the Impenal Act. The C')nstitution appears to mstke it phin that this is not so and the judgment of Mr. Justice Isaacs in The Gramophone Company Limited v. Leo Feist Incorporated, 41 C.L.R., at page 15, seems

to emphasize the plennry power of Parliament.

48

. It W':'Ls also suggested that, as Parliament has no poweJ, lmder the Constitution, to deal w1th as such, legislation regulating the exercise of its rights and powers by

a or such as the Australasian Performing Right Association would

be ultra of Parhament. Regulation and control of the. exercise of such privileges and rights as are cla1med to be conferred by the Commonwealth Copyright Act may well be within the competence of Parliament. '

Even if Parliament has, by adopting the Imperial Act, limited its_ authority to legislate for individuals, is not within the competence of to control and regulate the

activities of a combination of authors and composers 1 It has been pointed out to the Commission that the provisions of the Imperial and the Commonwealth Copyright Acts, like the International Conventions, are confined to authors and authors alone and, if that be right, it may be an added reason in support of Parliament's power to legislate in the direction suggested.

It may be of some importance to bear in mind that in 1911 and 1912, when the Imperial and Commonwealth Acts were passed, there was apparently no such as the

Australasian Performing Right Asociation in existence in Great Britain or Australia. The Performing Right Society (England) was not incorporated until 1914 and the Australasian Performing Right Association was formed in 1926. Such Associations, therefore, were not in contemplation when these Acts came into force.

The Associated Record Manufacturers do not rely upon the International Conventions. They suggest that their right as owners of Copyright to charge a performing fee is derived from the Imperial and Commonwealth Copyright Acts and that that right cannot be taken away from them by the Common wealth Parliament. · · _ · _

In answer to this it has been contended (and there seems sound reason for this contention that what are called the restrictive Sections (Sections 25 to 27) are confined to " authors " and the maker of a record is not an author within the meaning of the Acts in question. It is no part of the duty of this Commission to offer opinions on whether

Constitutional, International or otherwise. The important questions of law debated before the Commission are mentioned in this Report merely to indicate difficulties which exist or may exist in the way of legislation. ·

PART XIV.-LEGISLATION. -

After a careful consideration of all the evidence and the views of practical men placed before this Commission, it seems clear that legislation bas become necessary in order to protect the. interests of the public. Whatever form of legislation be adopted, it should be made as elastic and as capable of

speedy change as possible. As much as possible should be -left to Regulations and only the essentials be contained in the Act. Such legislaliion is, to an extent, ex.perimental, and any system of control or procedure may require or m?dification. No one .can foretell the future of broad.c3.sting other means of producmg musical works, or of the mterests of the ov.nets of Copynght or their representative associations, or of the tastes, demands and interests of the public. ·

Delay and sometimes diffi-;ulties arise. in altering the provisions of an Act. Changes in Regulations may be effected much more qmckly. . . .·.

The serious matters which have been discussed before this Commission are disputes between associations or organizations of different classes of users of music and ·and associations '\Vhich claim to control music and records. ·

It is suggested for the consideration of any providing for the

appointment of a trib.unal should to or orgamzatwns. . In the first

place any attempted mterference With the ngbts of md1v1dual ?wners of mar: be confronted with the difficElties said to be created by the incorporatiOn of the Impenal Copyright Act in the Commonwealth Act and by the International Conventions. Secondly, it is to the advantage of users, providers and the public generally that or. be

and that individuals should indirectly be compelled or mduced to JOill orgamzatwns whiCh reasonably represent their interests. ·

Any form of legislation to be enacted at the present time should make no to include other substitutes for broadcasting. It is impossible to say other means.of sound to the public will be discovered and conditions and fan to as 1+- IS

now and is likely to be in the immediate future, may be mapphcable or unfan m the case of new

49

1211

inveJ?-tions. It .might also unfair. to associations representing authors, composers and .to. Impose. conditiOns whiCh are reasonable while broadcasting more or less

remams as It IS and whiCh, under altered circumstances, may be unjust to such associations.

It may be worth considering whether any form of legislation should not be of a temporary nature-to cover, say, three years-in order that experience may show what changes result from the advances of science, the altered needs of owners of copyright and the makers of records, the development and extension of the National Broadcasting Stations, the requirements of users of

music in public generally and of the public at large, and the next International Convention to be held at Brussels in 1935. _r

PART XV.-RECOMMENDATIONS.

In the following recommendations :-"The Australasian Performing Right Association" includes any organization or society which claims to represent a substantial majority of the owners of copyright in musical works.

" Minister " means the Minister responsible for the administration of the Copyright Act. "Musical works" does not include dramatico-musical works and refers to musical works controlled or claimed to be controlled by the Australasian Performing

Right Association or any similar organization. " Prescribed " means prescribed by regulations. " Record " includes any other mechanical contrivance of a like naiure by means of which sounds may be mechanically reproduced. It is suggested that at first, at any rate, disputes between associations or organizations and noi between individuals should be made the subject matter of legislation.

The pu'tpose of the Act should be to amend the law relating to Copyright and Patents and for other purposes.

THIS COMMISSION RECOMMENDS THAT LEGISLATION BE INTRODUCED HAVING THE FOLLOWING OBJECTS:-(1} The establishment of a tribunal to det&rmine disputes arising out of the performance in public of musical works and/or the use of records in public. ·

It will not be necessary to set up any form of permanent Court. What is needed is some tnbunal which can act promptly, without formality, and with as little expense to the parties as possible. The following outline indicates what is suggested :-If it appears to the Minister that any dispute has arisen or is likely to arise between-

(a) The Australian. Broadcasting Commission or any Board for the time being controlling National broadcasting stations ; or (b) Any Association or Federation substantially representing "B" class or other broadcasting stations; or ·

(c) Any association substantially representing any other class of users in public of musical works ; and (a) The Australasian Performing Right Association and/or

(b) An association of manufacturers or vendors of records, the Minister shall, failing agreement between the parties, refer such disputes for determination or arbitration to such person as may be prescribed, and such person may determine or settle the terms and conditions under which such musical works or records may be performed or used

in public. His decision shall be binding on the parties to such dispute and upon all persons · who are or may be entitled to become members of the association party to such dispute. There should. be no costs allowable to either party to the dispute in question and there should be no appeal to any Court from the decisio;n c;>f the so COJ?-stituted.. The

suggested provision as to costs may have the result of mdrrectly compelling parties to a dispute to come to an agreement rather than await the decision of a may some of the

formalities of litigation, and may prevent a wealthy orgamzat10n from crushmg a poorer association.

The object of legislation should be to encourage parties to make their own agreements and to render the tribunal necessary only in cases of failure to agree. The person prescribed should include a Justice of the High Court of Australia, a Justice of the Supreme Court of any State, or a Judge of any District or County Court in any State or person to be nominated by the Minister. It will probably be found that only important

disputes will require to be referred to a member of the judiciary. . . . may be of advantage if provision were made for intervention by.: the Attorney-General m the mterest of the public.

(2) Providing that it shall be lawful for any person to perform in public a musical work or to use in public a record (the subject of the dispute), provided such person proves that he has paid vr has tendered any charge and has complied with or has bona fide offered to comply with anv terms and conditions imposed by such tribunal. "

(3) Compelling the Australasian Performing Right Association from time to time to file at such place and in such form and within such time as may be prescribed lists of all musical works in respect of which authority is claimed to issue or grant performing licences or to collect fees and providing that the Australasian Performing Right Association shall not be entitled to collect any fees for licences for the performance of musical works which are not specified in such lists .

. . The Canadian Copyright Amendment Act 1931, section 10, affords an example of such a prOVISIOn.

At first it may be sufficient if the regulations prescribe that these lists"should be filed in the Copyright Office at Canberra and in the capital of each State, and that a copy of such lists be obtainable from the Australasian Performing Right Association on payment of the prescribed fee by any association.

(4) Compelling the filing of statements of. all fees and charges which the Australasian Performing Right Association proposes from time to time to collect· as compensation for the issue or grant of licences for the performance of musical work and providing for revision 'Of these fees and charges.

This provision should not be made applicable t.o broadcasters, but should be confined to other classes of users of musical works in public. It would be preferable to leave disputes between broadcasters and the Australasian Performing Right Association, failing agreement, to be decided by the tribunal to be constituted.

The filing of these statements of charges, with power to the Minister to revise them, would probably be sufficient to dispose of many of the disputes as to charges which now exist or are likely to arise between the general body of users of musical works in public and the Australasian Performing Right Association, but disputes as to terms and conditions of user may have to be referred to the tribunal constituted.

There should be power reserved to the Minister, after inquiry by such person as he may nominate, or as may be prescribed, to review these statements of charges from time to time, and to prescribe the charges which may be lawfully sued for or collected. Sub-section 2 of section 10 of the Canadian Act 1931 may be a useful guide on these points. ·

(5) Compelling the filing from time to time of accounts of the receipts and distribution of fees collected by the Australasian Performing Right Association and of accounts of fees received from the association and distributed by its members. ,

The places at which these. be :filed, the of filing and the of these

should be prescribed by regulatiOn. Probably at first 1t would be suffiCient to prescnbe that the accounts should be filed at the Copyright Office in Canberra and the State capitals. The accounts should be open to inspection by the public on payment of a prescribed fee.

(6) Providing that, until the time prescribed for the filing of the original lists. of musical works and the statements of charges has expired, the present rights of the Australasian Performing Right Association shall remain unimpaired. It will take to of works and of

charges, and, until the Australasian Perfo:mmg Right has an. of

complying with the Act, it would be unfair to the to interfere with the rights now held by the Australasian Performmg R1ght AssoCiatiOn.

51 1213

.. (7) that the. Australasian Performing f!,ight. Association shall lodge with the

the and the prescnbed, secunty say, the sum of £3,000) to meet

made upon the Australasian Performing Right Association for costs and other moneys payable

by the Australasian Right Association.

( 8) Providing a remedy in case of groundless threats of legal proceedings by the Australasian Performing Right Association, adopting, with the necessary modifications, section 91A of the Patents Act 1903-1921.

(9) Providing that a performing fee shall not b§ payable for the relay of any musical work by a broaf!c.aster if the .broadcaster has paid or tendered the performing fee due for the performance by the statwn.

(10) Providing that (except where admission fees are collected or similar charges are made by the user of the receiving apparatus) there shall be no performing right in respect of the re-diffusion of any musical work in public if the broadcaster has been licensed by the owner of copyright to perform the musical work in question.

The re-diffusion referred to would include such forms of re-diffusion (I) loud-speakers or similar contrivances operated in public establishments such as hotels, cafes, restaurants, boarding-houses, ships, &c., for the entertainment of the clientele ; (2) loud-speakers or similar contrivances used in shops for demonstrating wireless

sets; and

(3) loud-speakers or similar contrivances used in other classes of shops.

(II) Providing that there shall be no fee or charge payable for the perfermance of any musical work in any place for religious, charitable, fraternal or educational purposes if the entire proceeds, after deducting the reasonable cost of presenting the same, are devoted exclusively to religious, charitable, fraternal or educational purposes or for the maintenance of the place where such performance is held.

(12) Providin,g that there shall be no charge made for any performing right in a musical work. where the performance is not directly for private profit. This would include such cases as hotels, cafes, restaurants, ships, &c., where music is performed for the benefit of the clientele. Opinions may differ as to whether this provision should be inserted in the proposed Act, but, in the opinion of this Commission, the indirect profit arising from such a performance may reasonably be regarded as not being for the private profit of the user. This assumes that profit to the user is essential to the exercise of the right to claim a performing fee.

A similar provision has been included in a Bill introduced into the House of Representatives of the United States of America on 16th May, 1932, a copy of which was made available to this Commission through the courtesy of the Consul-General for the United States of America.

(13) Providing that there shall be no performing charge or fee for the broadcasting of musical works forming part of religious services.

(14) Determining whether a performing fee can or cannot be lawfully claimed by the manufacturer for the use of a record in public. It is suggested for the consideration of Parliament that the law should be made clear on this point and, in the opinion of this Commission, the performing right now claimed by some .record manufacturers is unreasonable and, if in law it exists, this right should be abolished.

(15) This Commission further recommends that consideration should be given to the question whether the delegate of the Commonwealth of Australia to the next International Com;ention to be held at Brussels in 1935 should not be instructed again to press upon the convention the claims and interests of the public in connexion with the· performance of musical works in public and the advisability of regulating and controlling the activities of such monopolies as the Australasian Performing Right Association and societies. It may. also be. suggested that the I Convention should be urged to recogmze the power of Parlwment each country of the umcn to regulate and control societies such as these, if their activities be detrimental to the public.

In conclusion this Commission desires to express its appreciation of the very valuable services rendered by the Honorable J. H. Keating, of the Victorian Bar, who appeared as Counsel to assist the Commission. All parties, witnesses, and the public are indebted to him for his courtesy and his fairness, and the Commission owes very much to him for his assistance.

52

Mr. F. J. McKenna, of the Prime Minister1s Department, has acted as Secretary most efficiently; he has shown marked ability, and his energy and great organizing powers have been invaluable to the Commission ; to all who needed . information he has always shown marked consideration. His services to the Commissioner personally cannot be over-estimated.

Tribute should also be paid to the excellent work done and the great assistance rendered by the men and women who reported the proceedings. The accuracy of their reporting and their desire to help the Commissioner are deserving of the highest corruhendation.

I have the honour to be,

Dated the 24th day of April, 1933.

The Right Honorable

Your Excellency's most obedient servant, LANGER OWEN.

SIR ISAAC ALFRED ISAACS, P.C., G.C.M.G., The of the Commonwealth of Australia.

Name.

Albert, Michel Francois ..

Allingham, William George

Anderson, Andrew Oswald

Barton, Albert Edward . . Bayliss, Henry John . .

Bennett, Alqert Edward .. .

Bennett, Sydney Thomas .

53

APPENDIX A.

LIST OF WITNESSES.

Designation.

Proprietor, Albert & Sons , Music Pub­ lishers, Sydney Distributor of Summit, Brunswick and Panachord Records, Melbourne General Manager of Station 2UW, Sydney

Consulting Accountant, Sydney .. Secretary, Literary Institutes Association of New South Wales, Sydney General Manager, Station 2GB, Sydney ..

Secretary of the Retail Traders' Associa­ tion of New South Wales, Sydney

Bluett, Albert Robert . . . Secretary · of the Local Government Association of New South Wales and Shires Association of New South Wales, Sydney Bourne, Clifford Rupert

Leslie Brown, George Chandler, John Beals . .

Chilvers, George Leonard

Critchlow, James Orford ..

Darling; Cecil Spencer ..

Donner, William Arthur . .

Duffy, Maurice Boyce

Edwards, Sidney William

Elford, Archibald Sefton ··

Ellis, Samuel Albert

Field, Francis John .

Edward Fink, Thorold ..

Fuller, John

Gilbert, Mark ..

Griffith, Ron. Arthur ..

Harrop, William Robert ...

Stableman, 72 Buckingham-street, North Richmond Sales Manager, 7 Clovelly-road, Rand wick Manager, J. B. Chandler & Co. , Brisbane,

and Manager 4BC, Brisbane

Secretary, · Australian Federation of Broadcasting'Statioi:l.s, Melbourne

Secretary in Sydney of Australian Federa­ tion of Broadcasting Stations, Sydney Manager, W. H. Paling & Co. Ltd., Sydney · Managing Director, Columbia .Grapho·

phone (Aust.) Ltd., and Manager, Aus­ tralian Branch Gramophone Co. Ltd .. , Sydney · President of the Australian Federation of

Broadcasting Stations and Secretary of Station 3KZ, Melbourne Secretary, Australasian Performing Right Association, Sydney ·

Deputy Chairman, Australian Steamship· Owners' Federation, Melbourne Music and Radio Dealer and Stationer, 290 Oxford-street, Paddington Music Dealer, Strand Arcade, Sydney ..

Director of 3DB Broadcasting Pty. Ltd. and Vice-President of the Australian Federation of Broadcasting Stations, Melbourne Managing Director of Ben and John

Fuller Ltd., Theatrical Entrepreneurs, Sydney Proprietor, Talkeries Gramophone Store, Queen Victoria Building, Sydney Trade Mark and Copyright Attorney,

Sydney Secretary Amusement Defence Associa­ tion, Sydney

State.

New South Wales

Victoria

New South Wales

New South Wales New South Wales

New South Wales

New South Wales

New South Wales

Victoria

New South Wales Queensland ..

Victoria

New South Wales

New South Wales

New South Wales

Victoria

New South Wales

Victoria

NewSouth Wales

New South Wales

Victoria

New South;Wales

NewSouth Wales

New South Wales

New South Wales

1215

Page No. of Evidence in Official Transcript.

318-355

2592-2595

1036-1062, 1068-1083A, 2184A-2259, 2632, 3025-3028, 3552-3556, 3638-3664, 3709-3710 3028-3030 1102-1123

1027-1031,

2993-2998 816-822, 1452-1454

1532-1561

2371-2378

2102-2109 1971-2032, 2037-2055

574-655, 755-782,

1869-1910,1932-1944, 2595-2608, 2259-2261

247-295, 312-318A 740--747 1646-1656, 1667-1691B; 1695-1724, 1732-1818,

1854-1865, 2333-2338, 2362-2365 II .

2380--2465

68D-141, 193-199, 237-241, 843-856, • 862-882, 887-889, ' 995-997, 999-1000,

1083A-1094, 1123-1131, 1138-1146, 1410-1433, 1445-1449, 1454-1531, 1561-1582, 1729.-1732 liJ 2626-2631, 2632-2635 . 963-995, 998

2295-2300

2301-2310

2511-2525, 2552-2558

1312-1351

2150--2156

1151-1179

1352-1380, 2614-2623

Name.

Herman, Louis Albert '

Hill, Alfred Francis

Hutchison, Percy Douglas Kitson, Francis Myles ..

Langley, John Ceeil

Larkin, Joseph Stanley .. Lipman, Jonas Alfred ..

Mackay, Grant ..

Mcintyre, William August

Mlligay, Oswald Francis ..

Moore, Prof. Sir Wm. Harrison Morgan, Sidney

Morgan, Sydney

Nathan, Reginald James

Pickford, Alick Merriott .. Pinkerton, Harold Richard Pullman, Cedric Adrian ..

Robb, William Mair

Samuel, Rudolph Meyer Scott-Proctor, Richard Shettle, Eileen Clare

Stephens, Alfred Geo.

Stevenson, Cecil Vincent

Stowell, Leonard Hilton ..

Sutherland, George

Taylor, Robert Voigt, Emil Robert

Waterman, Ewen Mcintyre

W estmacott, Charles Baring ton Williams, Harold Parkyn

Wilson, Stanley Eric

Wise, Marcus

Woodhouse, Frederick Randal Wollaston, George

Worrall, David Thomas ..

54

APPENDIX A-continued.

LIST OF WITNESSES--continued.

Designation.

Managing Director of .Moulded Product-s (Ajsia) Pty. Ltd., Manufacturers of Decca Records, Melbourne Composer of Musical and Operatic Works,

Sydney Cust oms Agent, Sydney Secretary of the Musicians Union of Aus­ tralia (New South Wales District) and

President of the Musicians Union of Australia Secretary, Cinematograph Exhibitors' Association, I1tfelbourne Manager of Station 3UZ, Melbourne Australian· Agent of British International

Pictures Ltd., Sydney Sales Manager for Celebrity Pictures Pty. Ltd., Sydney President, Motion Pictures Exhibitors'

Association, Sydney Managing Editor, Radio Retailer of Australia, Sydney Former Dean of the Faculty of Law,

University of Melbourne Formerly Secretary and Director of Station 3DB, Melbourne Managing Director, 3KZ Broadcasting

Co. Pty. Ltd., Melbourne Manager, Nicholson & Co. Ltd., Music Publishers, &c., Sydney Director, Western Electric Co ., Sydney .. Manager of Station 5DN, Adelaide General Secretary, Victorian Chamber of

Catering Industries, Melbourne Professional Musician, 9 · Arnold-street, Princes Hili, Melbourne Professional Musician, Sydney

Unemployed Copyright Clerk, Blackburn Employee of Australasian Performing Right Association,_ Sydney Author and Literary Adviser, Composer

and Publisher, Sydney Managing Director of Station 2UE, Sydney

Assistant Manager, Gramophone Co. Ltd., Sydney

Director, Allan & Co. Pty. Ltd._, Mel­ bourne and Director, Vogue Broad­ casting Co. (3A W), Melbourne Professional Dancing Teacher, Sydney .. Manager Station 2KY, Sydney

Secretary South Australian Motion Picture Exhibitors' Association of Adelaide General Manager, J. C. Williamson Ltd.,

Sydney ·

General Manager, Australian Broadcasting Commission, Sydney Assistant to the Directors of Farmer & Co. Ltd., Sydney Director, Hoffnung & Co. Ltd., and

Manager Gramophone Record Distribu­ tion Department, Sydney Professor of Singing, Sydney

Music and Radio Dealer, 355 George-

State.

Victoria

New South Wales

New South Wales New South Wales

Victoria

Victoria New South Wales

New South Wales

New South Wales

New South Wales

Victoria

Victoria

Victoria

New South Wales

New South Wales South Australia Victoria

Victoria

New South Wales Victoria New South Wales

New South Wales

New South Wales

New South Wales

Victoria

NewSouth Wales New South Wales

South Australia

New South Wales

New South Wales

New South Wales

New South Wales

New South Wales

New South Wales

Page No. of Evidence In Of!lcia Transcript.

2468-2476

418-426

2272-2273 2805-2816

1189-1277, 1310-1312, 1406-1407, 1590-1594 719-740, 2068-2087 2611-2614

1133-1137

1277-1309

2109-2149

2479-2509

2587-2591

2087-2102

355-411

2751-2755

2559-2575 2576-2587

2526-2529

2703-2706 2530-2539 297-312

894-911

929-962, 3015-3024, 3054--3057 1818-1854, '

2339-2361, 3014-3015, 3452-3453, 3478, 3710-3719 142-192, 199-236,

412-417, 426-439

882-887 782A-814, 912-928, 21D6-2184A 1381-1409

571

454--562, 2055-2068, 2261-2272 822-843

1865-1869

440-451

2274-2294

street, Sydney _

Manager of Station 3DB, Melbourne Victoria .674--719, 1911-1917,

1921-1932, 1944-1970

55 1217

APPENDIX B.

LIST OF EXHIBITS.

1. Statement filed by the Australian Broadcasting Commission. 2. Statement filed by the Australasian Performing Right Association. 3. Memorandum of Articles of Association (Australasian Performing Right Association) and rules. 4. Special Report of Committee of House of Commons--3rd July, 1930. 5. Memorandum from the Performing Right Society Ltd. (Great Britain).

6. Agreement between Performing Right Society Ltd. and Australasian Performing Right Association-11th January, 1926. 7. Assignment from Performing Right Society Ltd. to Australasian Performing Right Association-28th January, 1926. 8. Assignment from Performing Right Society Ltd. to Australasian Performing Right Association-24th March,

1927.

9. Form of Assignment executed by members in Australia. 10. List showing membership of Performing Right Society and other societies. 11. List" R "-List of music publishers, authors, &c. 12. List of present members of Australasian Performing Right Association.

13. Pamphlet-The case for performing right. 14. List of Australasian and New Zealand composers and others-(Referred to by Mr. Edwards). 15. Allan & Co.-Synopsis of sheet music trading. 16. Letters from Leo Feist (Inc:) to George Sutherland.

17. Royalty statement by Allan & Co. toW. & Co. (New York). 18. Royalty statement by Allan & Co. to Leo FeiSt (Inc.). 19. Lists of overseas' firms and persons represented by Allan & Co. 20. Copy of cable sent by Australasian Performing Right Association to American Society of Composers, &c., on 5th

October, 1932, together with original reply. Copy of cable sent by Australasian Performing Right Association on 8th October, 1932, and original reply (same date). 21. Suggestions made by Mr. George Sutherlltnd as part of his evidence. 22. Balance-sheet of Australasian Performing Right Association for year ending 30th June, 1931, together with

distribution accounts for that year. 23. Special Report of the Select Committee on " Musical Copyright Bill, 1929 " including copy of Bill. 24. Number of compositions published by W. H. Paling & Co. Ltd. from 1925 to September, 1932. 25. Total income derived from music by the same company from 1924-1931 (from the sales of sheet music).

26. Comparison of gross profits, sheet music, mechanical royalties, broadcasting, 31st December, 1925, to end of 1931. 27. Total sales of gramophones and records for the same period. 28. Division of broadcasting fees received by Paling & Co. as a member of Australasian Right Association. 29. List of broadcasting fees paid to overseas publishers or ,owners from 1925-1931. 30. List of Australian composers whose work has been published by Paling & Co. 31. Comments :uiade by Mr. Darling on the Canadian Act of 1931. 32. Sale of sheet music 1928 to middle of 1932, and sheet music sales 1927 to middle of 1932. 33. Sale of stamps on records, &c., made in Australia 1928-1931.

Amounts received from manufacturers of records, &c., on stamps sold 1927-1931. 34. List of American and British publishers represented by Albert & Co. 35. Estimated loss oflrving Berlin (inc.) (America}-Three years' contract ending December, 1932. 36. Actual loss on Metro;Goldwyn Mayer contract for one year ending 30th April, 1931. 37. Copy of agreement between Australasian Performing Right Association and Australian Broadcasting Company

Limited, 29th January, 1930-For three years. 38. Form of agreement between Australasian Performing Right Association and all "B" class stations which is at present in existence. 39. Statement of sales of all music by Nicholson & Co. Ltd., and talking machines and records, 1928--1932. 40. Value of stamps issued by Nicholson & Co. to manufacturers of records 1928-1932. 41. Allocation of amounts received by Nicholson & Co. from Australasian Performing Right Association from December,

1927, to December, 1931, with allocation of amounts paid to persons or firlllS other than Nicholson & Co. 42. Statement prepared by Mr. Nathan. 43. Copy of correspondence between Australasian Performing Right Association and the Broadcasting Commission. 44. Statement of Mr. Nathan's views.

45. Chart showing fees which would have been paid under the agreement with Australian Broadcasting Company, and the fees which would be paid under the new proposal. 46. Opening statement made by Mr. WillialllS. 47. List showing growth of licences for the Commonwealth and each State, with two graphs illustrating the growth. 48. Statement read by Mr. Pilkington for the Columbia Graphophone Co. Ltd. (Aust.), the Gramophone Co. Ltd. and

the Parlophone Co. Ltd. (manufacturers of gramophones). 49. Statement comparing the mechanical and personal performances by Station 2FC for July, August, and September, 1932. 50. A similar statement as above for Station 3LO for the same months. 51. Statement submitted by the " B " class stations. 52. List of Members of Federation of " B " class stations throughout the Commonwealth. 53. Two (2) statements as to growth of licences read by Mr. Chilvers indicating the influence of "B" class stations. 54. Copy of Form of Agreement made for 1931 between Australasian Performing Right Association and all " B "

class stations. 55. Advertisement rates for Station 3DB-lst April, 1932.

56

APPENDIX B-continued.

LrsT OF ExHIBITS-continued.

56. :prepared by 3DB for advertising purposes.

57. Advert1smg rates for Station 3UZ. .

58. Constitution of the Australian Federation of Broadcasting Stations. 59. Advertising rates for Station 2KY. 60. Statement submitted by the Retail Traders' Association. 61. Statement submitted by Australasian Performing Right Association. 62. Form supplied by Australasian :Performing Right Association to firms and with whom that Association

has agreements. 63. Form of licence issued by Australasian Performing Right Association to Farmer & Co.-Form "A." 64. Constitution of Retail Traders' Association of New South Wales. 65. Advertising rates of Station 2UE-lst September, 1932. 66. Case submitted by Steamship Owners' Federation. 67. Case submitted by Australasian Performing Right Association. 68. Statement of music played on board ship. 69. Cable received from Broadcasting Board in Germany dated 21st October, 1932, with copy of cable sent by

Broadcasting Commission, Sydney, and cable from British Broadcasting Commission dated 27th October, 1932. 70. Specimens of analysis of programmes made by Australasian Performing Right Association and allocation of moneys received (three sets documents). 71. Balance-sheets of Australasian Performing RightAssociation for year ending 30th June, 1926 to 30th June, 1930,

inclusive, with distribution accounts for each year. 72. Card of advertising rates now current of Station 2GB. , 73. Classification of "B " stations and charges made against each station. 74. Advertising rates of Station.2UW now effective. 75. Agreement dated 9th September, 1932, between Gramophone, Columbia and Parlophone Companies, and the

Australian Broadcasting Commission. 76. Letter from Mr. Brady (solicitor) forthe Returned Sailors and Soldiers' League of Australia (New South Wales Branch), dated 19th October, 1932. .

77. Case submitted by the Literary Institute Co-operative Society of New South Wales Limited. 78. Form of licence sent by Australasian Performing Right Association to a large number of institutes and schools of arts. 79. Notice issued by Australasian Performing Right Association to halls throughout the Commonwealth in 1929 with

covering letter. 80. List of schools of arts, mechanics' institutes and literary institutes having Australasian Performing Right Association licence. 81. Licence issued to R.C.A. Photophone (Inc.) by Musical Copyright Owners' Association of America. 82. Case submitted by.the associations represented by Mr. Langley and Mr. Waterman. 83. Reply by Australasian Performing Right Association to the above case. 84. Case submitted by the associations and company represented by Mr. Purcell. 85. Reply of Australasi[}n Performing Right Association to last-mentioned case. 86. First list of works furnished to Mr. Langley (List " B "). 87. Scale of charges made in 1926 by Australasian Performing Right Association. 88. Comparison of items and charges, 1926 and 1932. 89. Letter of 30th January, 1928, Australasian Performing Right Association to Mr. Langley. Reply February,

1928.

90. List showing comparison between former charges and charges under the new form of licence. 91. List of legal proceedings issued by Australasian Performing Right Association. 92. Statement by exhibitors in Western Australia. 93. List of questions submitted to members. of the Motion Pictures Association in October, 1932, and 42 replies to

same.

94. Two typical contracts entered into by exhibitors with distributing agencies. 95. Type of agreement entered into by Mr. Mcintyre with Australasian Performing Right Association, 2nd August, 1926. 96. Comparative statement of charges for vaudeville and moving pictures.

97. Correspondence between Mr. S. T. Bennett and other associations in other States. 98. Five (5) contracts between Australasian Performing Right Association and vaudeville theatres with seating accommodation of each theatre. 99. List of picture theatres in New South Wales, Victoria, and South Australia on the 1928 scale of fees. 100. Submission by the Local Government Association and the Shires Association of New South Wales. 101. List of theatres and public halls in city, suburbs and country. 102. List of councils owning halls. 103. Circular dated 25th February, 1926, pamphlet and List "B" sent by Australasian Performing Right Association

to owners of halls. .

104. Circular letter dated lOth March, 1926, sent by Australasian Performing Right Association with printed enclosures. 105. Copy letter 18th March, 1926, from Local Government Association to Australasian Performing Right Association, with reply from Australasian Performing Right Association dated 22nd March, 1926. . 106. Letter from Australasian Performing Right Association of 4th October, 1932, to Honorary Secretaries of Church

of England Ball, Eden. 107. Statement by Mr. W. A. Donner on behalf of the gramophone companies. 108. Copy letter 15th January, 1932, from the companies to the Postmaste.r-<:teneral. 109. Submissions on behalf of the gramophone compames represented before the CommiSsion.

57

1219

APPENDIX B-continued.

LIST OF ExmBITs-

llO. Average percentage decrease of record sales-(a) Columbia Company, (b) Gramophone Company, and (c) Parlophone Company. 111. Lists showing the trading, &c., of the companies. ll2. Reductions in prices of records. ll3. Draft agreement between the manufacturing companies and a "B" class station, with covering letter of 16th

August, 1932, from Mr. Donner. . 1

114. Letter and basis of agreement from Mr. Anderson of 2UWStation and reply, and also further letter fromMr. Anderson. ·

IUS. Submissions by the Federation of " B " class station&. .

116. Circular letter sent by each of the manufacturing companies to all broadcasting stations, 17th November, 1931, with two record labels attached. -

117. Draft agreement submitted by manufacturing companies and amendments suggested by "B" class stations Federations. Reply 4th and 6th August, 1932. 118. Correspondence between manufacturing companies and "B" class Federation between 23rd August, 1932, and 18th October,

119. Copy licence 21st October, 1931, from Columbia Company to Gramophone Company to use patents belonging to Columbia Company. .

120. Percentage figures of decrease in sale of records since and including 1927, and portable machines since and including 1929, &c. 121. Letter from manufacturing companies to Mr. G. L Chilvers, 24th November, 1931. 122. Letter from Mr. G. L. Chilvers to manufacturmg companies, lOth December, 1931.

123. Minutes taken by "B" class Federation of conference between their representatives and representatives of the manufacturing companies, 5th January, 1932. 124. Suggested agreement put forward by " B" class Federation as acceptable to that Federation, sent about 2nd August, 1932. 125. Report of the committee (England) on the Law of Copyright. 126. Imperial Copyright Conference 1910 (memorandum of the proceedings). 127. The radio forecast, 8th to 14th May, 1932. · 128. Copy letters 5th, 18th, 20th and 26th August, 1932, between Mr. A. 0. Anderson and Mr. H. P. Williams.

129. Draft agreement lOth August, 1932, between associated manufacturers and a" B" class station. 130. Copy cable 25th November, 1932, from Dr. Wallace to the Manager, Broadcasting Commission. 131. Landed costs of records. 132. List of profits remitted to England by Parlophone Company, Columbia Graphophone Company, and Gramophone

Company from 1927 to 1932. 133. Statement of fees paid to Australian artists by Columbia, Gramophone Company an dParlophone Company from 1927 to 1932. 134. Average percentage decrease on quantities of records sold by Parlophone Company, Gramophone Company,

and Columbia Graphophone Company. . .

135. Statement of variations in sales of records from 1926 to 1932 in Queensland, New South Wales and Victoria. 136. Statement of sales of records in Australia (not including New Zealand) of Gramophone Company and Columbia Company. 137. Correspondence with Mr. A. S. Elford embodying the views of the companies forming his Federation. 138 .. Extract from Canadian newspapers of evidence taken before Mr. Justice Ewing.

139. Correspondence between 3DB Station and Australasian Performing Right Association from 9th August, 1929, to 18th February, 1930. ·

140. Correspondence between 3DB Station and Australasian Performing Right Association between 19th December, 1931, and 1st April; 1932. 141. Duplicate of Exhibit 92 verified by Mr. Philip Norman Appleby. 142. Suggestions made by Mr. J. C. Langley as to rates which should be charged by Australasian Performing Right

Association.

143. Comparison between the 1926 and 1928 rates for Victorian picture theatres. 144. Particulars of profit and loss on gramophones and records by Allan & Co. Pty. Ltd. 145. Royalties paid by Allan & Co. Pty. Ltd., from 1923 onwards. 146. Letter from nineteen "B" class stations endorsing Mr. Chilvers' correspondence with the Acting Attorney-

General.

147. Subinissions by the Municipal Associa.tion of Tasmania. 148. Financial statements of 30 "B" class stations for year ending 30th June, 1932. 149. Lists giving dates of commencement of services of (a) National Broadcasting Stations, and (b)" B" class stations, with hours of service of "A" class stations and" B" class stations.

150. Lists of hotels licensed by Australasian Performing Right Association in Sydney and Melbourne. 151. Comparison as between Australasian Performing Right Association and the Performing Right Society, England. 152. Arrangements rebroadcasting of musical works in New Zealand, 1926-1932.

153. Statement by Canadian Performing Right Society in opposition to the Canadian Copyright Amending Bill, No.4. 154. Statement by D. Davis & Co., as to sales, &c. 155. Statement by W. H. Paling & Co. Ltd., as to sales, &c. 156. Statutory declaration by Francis Leveson-Gower West, of Auckland, New Zealand.

157. Copies of two letters dated 22nd December, 1932, from Australasian Performing Right Association to London and copy of cable from Performing Right Society, England, in reply. 158. Statement by Walter Bassett of sales, &c. 159. Statement by Sam Fox Publishing Co. (Australia) Pty. Ltd., of royalties paid by them.

160. Documents furnished to the Cominission by the Government of New Zealand.

58

APPENDIX B-continued.

LIST OF EXHIBITs---continued.

·'

161. Letter dated 13th January, 1933, with enclosure from Secretary of" B" Class Federation to Minister of Customs: ; Notes of deputation to the Minister and letter from the Minister dated 26th January, 1933. -,\ 162. Board of Trade Report dated 19th May, 1928. _ _ \:

163. Report and balance-sheets of Columbia Graphophone Company Ltd. (England) from 1925 to_ 1930, both inclusive· . . . 164. Report and accounts of Gramophone Co. Ltd. (England) from 1924 to 1930, bothinclusive. t · 165. Report and accounts of Electric and Music Industries Ltd. (England) from 1931 to 1932, both inclusive; 166. Statement of amounts received by Australasian Performing RightAssociation from 1927 to 1931, both inclusive,

from picture theatres in Australia. 167. Summary showing directors' fees, depreciation and other reserves of eight" B" class stations as at 30th ' June, 1932. 168. Commonwealth Statistician's retail prices index numbers indicating gradual fall in Federal basic wage. 169. Copy of balance-sheet of 2UE Company for the year ending31st December, 1932.

·-

Printed and Published for the GOVERNMENT of the COWMONW&J.LTli of AUSTBALI4 br L. F. JoHNSTON, Commonwealth Government Printer, CLnberra.

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