MUSIC RIGHTS

Timaru Herald, Volume CXXXVII, Issue 19512, 10 June 1933, Page 2

MUSIC RIGHTS

ROYAL COMMISSION’S REPORT. “DICTATION OF TERMS.” BY PERFORMING RIGHT ASSOCIATION CANBERRA, May 24. Mr Justice Owen, Royal Commissioner on Performing Rights, whose report was tabled in the House of Representatives to-day described the Australasian Performing Right Association as a super-monopoly, able to dictate its own terms. He also said that the associated record manufacturers could impose such conditions as they though fit on records to be made available to users in public. Mr Justice Owen recommended the setting up of a tribunal to settle disputes between these bodies and the users.

He also recommended legislation providing, among other things, that there should be no charge made for any performing right in a musical work where the performance was not directly for private profit, or for the L oadcasting of musical works forming part of religious services. It is suggested in the report for the consideration of the Parliament that the law should be made clear whether a performing fee can be lawfully claimed by the manufacturer for the use of a record in public. In the opinion of the Comissioner, it is sated, the performing right now claimed by some record manufacturers is unreasonable and, if in law it exists, this right should be abolished. The report states that the evidence before the Commission established— That 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. Tha 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. Phonograph Records. That at present and under present conditions, the associated record manufacturers practically control the Australian market for high-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. That under present conditions, the broadcasting stations, both national and B class, are dependent on the associated record manufacturers for records reasonably required for boadcasting, and without such records, broadcasting cannot be efficient. That disputes have arisen and are likely to arise and continue between the associated record manufacturers and the B class stations as to the terms and conditions on which the manufacturers’ records may be used for broadcasting.

That the present agreement with the Australian Broadcasting Commission for the 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.

That public interest demands that harmonious relations should be restored and maintained between he above parties, and that some form of tribunal should, failing agreement, determine the disputes between uhe above parties.

Commissioner’s Opinions.

The report states that the Commission has assumed that some form of tribunal might be regarded by Parliament as essential, and for that reason it might be unfair to express any definite opinion as to the reasqnableness or otherwise of the charges claimed. and the conditions sought to be imposed by the Australasian Performing Right Association and the associated record manufacturers. All the Commission is inclined to report is that on the evidence now before it, the following opinions may be expressed—(l) 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 by the B class stations are reasonably fair. (3) Substantially, the other conditions of use offered by the Australasian Performing Right Association to both classes of stations are not unreasonable.

(4) Possibly some B class stations m Queensland and other States are entitled to special conditions or rates owing to atmospheric conditions. (5) The charges made in respect f f picture theatres and similar places of entertainment are excessive, particularly the charges introduced in 1928, and the conditions relating to returns of music performed require modification.

(6) The charges made to other users in public, such as shipowners, hotels, restaurants, cafes, etc., may not be excessive, but they are not calculated on any reasonably settled basis, and to an extent justify the complaints made. The returns of music demanded require some modification. (7) The conditions contained in the agreement between the associated manufacturers cf records and the Australian Broadcasting Commission appear to be, on the whole, reasonable, but the terms should be offered to all B class stations. In the case of the smaller B class stations in the country, permission to broadcast records with greater frequency should be allowed. (8) The term of agreements rr licences for the use of musical works and records by all classes of users in public should be from two to three years. Proposed Tribunal. Mr Justice Owen stated that it would not be necessary to set up any form of permanent court. What was needed was some tribunal which could act promptly without formality and with as little expense to the parties es possible. The object should be to encourage parties to make their own agreements and to render the tribunal necessary only in cases of failure to agree. The president of the tribunal should be a High Court, Supreme Court, District Court, County Court Judge or any other person nominated by the Minister. There should be no costs allowable to either party to the dispute, and there should be no appeal from the decision of the tribunal. The Commission recommends that action should be taken by legislation to compel the Australasian Performing Right Assocation to file certain information, such as lists of musical works in respect of which fees are to be claimed; statements of all fees and charges; accounts of receipts and distributions of fees collected by the association and of fees received from the association and distributed by :ts members. It is suggested that these particulars be filed in the Copyright Office at Canberra, and in each State capital, and that they be available for public inspection on payment of a prescribed fee. Until the Performing Rights Association has had an opportunity of filing the statements the present rights of the association, it is ercommended, shall remain unimpaired. The Performing Right Association. it is recommended, shall be ceI quired to lodge with the Minister I security in, say, the sum of £3OOO to

meet claims made upon it for costs and other moneys payable. Leglisation to provide a remedy in case of groundless threats of legal proceedings by the Performing Right Association is recommended. Other provisions, which it is recommended should be contained in legislation, are that a performing fee shall not be payable for the relay of any musical work by a broadcaster if the broadcaster has paid or tendered the performing fee due for the performance by the originating station; that there shall be no fee payable for the performance of any musical work in any place for religious, charitable, fraternal, or educational purposes if the proceeds are devoted to those • purposes; that there shall be no charge for any performing right in a musical work where the performance is not directly for private profit (such as *n hotels, cafes, restaurants, etc.\ or for the broadcasting of musical works forming part of religious services. The AP.R.A. The evidence had satisfied the Commission that on the whole, the A.P.R.A. carried on its business on sound lines; was managed by capable and reasonable men; protected to the best of its ability the interests of the copyright owners it represented; accounted as best it could to those whose money it collected; and attempted to afford information to those who use or seek to use the music it claimed to control. The Commissioner added: “It is difficult to imagine any other monopoly with such powers as are possessed by the A.P.R.A. It controls, or claims to control, over 80 per cent, of the best music which is subject to copyright—and no one is in a position to dispute these claims. It can dictate its own terms—without its consent no one can use its music in public. The community is prevented from listening to its music unless the association agrees to *ts use. There is, and unless the law be altered, there can be no restraint 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, they can be made so. The user in public and the community itself are dependent on the goodwill .1 and the policy pursued by the A.P.R A. and its members."