FAQ

We receive numerous questions relating to public performance rights and copyright, so we’ve put together a Q&A of some of the most popular questions we're asked.  Please note that our answers to any legal questions reflect PPCA’s position in relation to Australian law at the time of posting.  Our answers are not a substitute for independent legal advice, either generally or in respect of a particular licensee’s circumstances. 

Public Performance Licensing - The Basics

  1. What is public performance?
  2. Do I need a licence?
  3. What are the benefits of playing music in my business?
  4. How much do licences cost?
  5. When should I apply for a licence.
  6. Is there any legal requirement for me to pay PPCA licence fees?
  7. I already have an APRA licence – why would I need a sound recording licence?
  8. What are the consequences of operating a business without an appropriate licence?
  9. Do I have to get a sound recording licence from PPCA? Are other licences available from anyone else?
  10. Why deal with PPCA rather than the individual copyright holders?
  11. Everything you need to know about One Music Australia

About PPCA

  1. What services does PPCA provide?
  2. Is PPCA a government organisation?
  3. What are the Terms and Conditions of PPCA's standard public performance licence?
  4. How are business licence fees determined?
  5. Is a PPCA licence required for live performances?
  6. Do we only have to pay PPCA licence fees on Australian artists?
  7. What does the PPCA blanket licence cover?
  8. Who runs PPCA?
  9. What is the PPCA Performers’ Trust Foundation?
  10. Does PPCA have a refund policy?
  11. How does PPCA distribute the money it collects?
  12. Where can I get more information on the PPCA and its functions and activities?

Public Performance Licensing - More Specific Queries

  1. Are there any recordings for which I don't need a licence?
  2. The music I play in my business is sourced from CDs I borrow from friends or from the Internet - do I still need a licence?
  3. Do I need a licence to copy recordings (physical or digital) to play in my place of business?
  4. I only play music from the radio – do I still need a licence?
  5. Should I notify you if I am the new owner of a business?
  6. I’m an event organiser or promoter. Do I need a licence?
  7. There are regular dance parties at our hotel but we don't organise them - we just provide the premises, collect the bar but don't collect any of the takings. Why should we pay PPCA fees?
  8. Why is the owner of the premises liable for any PPCA licence fees?
  9. I run a nightclub - isn't the DJ already covered?
  10. I paid for the CDs. Why do I need a PPCA licence to play them in my business?
  11. Where can I get a copy of the Copyright Act?
  12. What is the Collecting Societies' Code of Conduct and how does it impact on the PPCA’s operations?
  13. What if I want to use a music streaming service to provide background music for my business?

Recent PPCA Tariff Reviews

  1. What happened with the PPCA Nightclub, Dance and Dance Party tariff review?
  2. What happened with the PPCA Restaurant and Cafe Tariff Review?
  3. How are the new restaurant tariff rates being phased in? What will the rate be from 1 July?
  4. What's happening with the PPCA Fitness Class tariff review?

What is public performance?

A public performance is the playing of a sound recording or the exhibition of a music video in public (i.e. a non-domestic environment). Just because a performance is given for free, or the audience is small, or there is no admission fee, or the performance is confined to members of a club, or a limited area, it does not mean it is not a public performance.     

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Do I need a licence?

Some business owners are surprised to learn that they need a licence to play copyright protected music in their business and don't always understand that simply buying a CD, for example, doesn't give them the right to play it in a commercial environment. Generally speaking, any business that wants to play copyright protected music or music videos has to first obtain the requisite licences.

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What are the benefits of playing music in my business?

Research has shown that recorded music and music videos can help create an image, influence the experience and decisions of customers, motivate staff and positively impact sales. Most importantly, it helps your business stand out from its competitors!    

Put simply, if the music played in your establishment is enjoyed by a customer, then it is likely that this positive response will be associated with your product, environment or experience – which is what every successful business needs.

Music Works has conducted research on how music positively impacts business operations – you can check out the results, and see how music might help your business, here.

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How much do licences cost?

Licences costs vary across different industries. Look at our How Much Is A Licence page to find the tariff for your business.  If you are a webcaster or a television or radio broadaster, please refer to our webcasting and broadcast licensing pages for further information.  

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When should I apply for a licence.

A licence should be obtained in advance of undertaking the public performance or broadcast of sound recordings or music videos. 

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Is there any legal requirement for me to pay PPCA licence fees?

It is illegal to play protected sound recordings for commercial purposes without a licence. The Copyright Act imposes an obligation on those who wish to broadcast, communicate or publicly perform protected sound recordings and music videos to obtain the licence of the copyright holders.  PPCA is authorised by participating record labels to grant these licences and to collect licence fees. If you don't obtain a licence from PPCA, you will need to obtain a licence from each relevant individual copyright owner. For further information, see The Legal Position.

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I already have an APRA licence – why would I need a sound recording licence?

There are at least two (2) copyrights in any recording:  

(i)  The copyright in the song, being the composition and/or lyrics (i.e. the "musical work" in copyright language).  APRA grants licences for the broadcast and public performance rights in the musical work and distributes licence fee income to songwriters and their publishers.    

(ii)  The copyright in the recorded version of the musical work.  PPCA grants licences for the broadcast and public performance of recordings and distributes licence fee income to record labels and directly to registered Australian recording artists.  

The practical effect of this distinction is that the broadcast or public performance of a protected recording usually requires two licences - one from APRA and one from either PPCA or the individual sound recording copyright owners. 

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What are the consequences of operating a business without an appropriate licence?

It is illegal to play protected sound recordings without an appropriate licence.  

PPCA operates an enforcement program, carrying out inspections and investigations into the un-authorised public performance, transmission and broadcasting of copyright protected sound recordings and music videos by businesses across Australia. In some circumstances, where, despite numerous attempts at licensing a business found to be using copyright protected sound recordings and/or music videos, that business continues to perform protected sound recordings in public without a licence from the appropriate copyright owner(s) or PPCA, PPCA can and does take legal action on behalf of its licensors for the infringement of copyright. 

PPCA has enjoyed a 100% success rate in legal proceedings against businesses using protected sound recordings without a licence to do so. 

The Federal Circuit Court of Australia (previously the Federal Magistrates Court) can rule that an unlicensed business must pay backfees, legal costs and damages if they are found to be illegally playing recorded music. 

We encourage anyone who is considering using recorded music or music videos to contact us beforehand to ensure the appropriate licenses are issued. We are able to talk people through their responsibilities and the costs involved so that they can build them into a business plan.   

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Do I have to get a sound recording licence from PPCA? Are other licences available from anyone else?

PPCA is not the only organisation from which you can obtain the required licences.  If you prefer, you can approach each copyright holder (usually the record company) individually to get a licence for the recordings and music videos that they control. However, we're the only organisation in Australia that can offer you a 'blanket' licence that covers just about all recordings commercially released in Australia. 

If you're from a TV or radio station, go to Broadcast Licensing.

If you're playing recordings or music videos in public, or playing music to phone customers on hold, go to the Licensing Homepage.  

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Why deal with PPCA rather than the individual copyright holders?

If you undertake the public performance, communication or broadcast of protected sound recordings or music videos, and don’t wish to deal with the PPCA, you'll have to incur the time, expense and difficulty of finding the appropriate rights owners for all of the protected sound recordings you wish to use. Once you identify these owners you must then negotiate individual deals and undertake the necessary administration/accounting activities with respect to each of the rights owners.   

PPCA provides an efficient “one-stop-shop” to users who wish to undertake the public performance, communication or broadcast of protected sound recordings or music video's covered by the PPCA licence.  

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Everything you need to know about One Music Australia

For information about the development of a single public performance licensing scheme, head to onemusic.com.au

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What services does PPCA provide?

 PPCA sees its major service as providing effective one-stop licensing for those who wish to play sound recordings in their business. PPCA provides:   

  • a telephone advice service in relation to public performance arrangements;
  • pamphlets on public performance of sound recordings and music video; and
  • provides speakers to address representative groups for licensees about public performance and broadcast rights 

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Is PPCA a government organisation?

No. PPCA is a national, non-government, non-profit organisation representing the interests of record labels and Australian recording artists. 

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What are the Terms and Conditions of PPCA's standard public performance licence?

The Terms and Conditions can befound on the PPCA Licence Details Form

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How are business licence fees determined?

PPCA's business licence fees are assessed under a system of tariffs. In most cases, the level of fees relate directly to the extent to which sound recordings are played by the licensee and the size (or potential size) of the audience. 

For music videos, the level of fees relate directly to the number of areas, and the number and size of the screens on which music video clips are displayed by the licensee together with and the size (or potential size) of the audience.   

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Is a PPCA licence required for live performances?

A licence is required to cover the public performance of protected sound recordings used during live performances. For example, if sound recordings are used within an artist’s set and/or where sound recordings are used before, after or between performers’ sets at events and concerts, a public performance licence is required. 

This licence can be obtained from PPCA as a blanket licence or alternatively, a licence can be sought from the individual copyright holder(s) of each sound recording performed during the event or concert.

For more information about PPCA licences for Music Events and Festivals, other events (such as food & wine festivals community events, arts festivals markets and fairs), or Dance Parties – please contact PPCA’s Licensing Department on  (02) 8569 1111 or licensing.mail@ppca.com.au

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Do we only have to pay PPCA licence fees on Australian artists?

No. International copyright regulations extend copyright protection to recordings and music videos of overseas artists played in Australia.  

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What does the PPCA blanket licence cover?

The blanket public performance licence which PPCA grants covers the very wide range of sound recordings and music videos that meet two criteria. First, the licensed sound recordings  must be owned or controlled by copyright owners that are licensors to PPCA and second, the communication and / or public performance of the licensed sound recordings must be protected under Australian copyright law.  

As to the first requirement, that the recording or video be owned or controlled by a PPCA licensor, you can check whether a particular copyright owner is a PPCA licensor by looking at the List of Current Licensors.  That web page also provides a click through to the list of labels controlled by PPCA licensors and covered by PPCA's blanket licence. PPCA licensors include all the major record companies and over 1,100 other copyright owners. 

As to the second requirement, that the recording or video be protected under Australian copyright law, it is worth noting that: 

  • all recordings are protected for non-broadcast communication (eg internet streaming, music on hold);
  • all music videos are protected for all uses  

However, in the case of public performance or broadcast of sound recordings, the law in this area is complex and there is no simple test for determining when a sound recording is protected under Australian copyright law in respect of such uses.  PPCA is aware that some licensees are under the misapprehension that all US artist recordings are unprotected, and can therefore be either broadcast or played without the need for any licence. This is not correct, and in fact many recordings made by US artists are protected, because of the way that specific aspects of the legal requirements are applied.  

In general terms, for public performance and broadcasting, copyright protection applies to the playing of a sound recording in public in Australia if that recording was made by a citizen, national or resident of, or body corporate incorporated in, a protected country. The US is not a "protected" country at present, but as we explain here, that does not mean that all recordings by US artists or made in the US are necessarily unprotected under Australian copyright law. 

First, determining who "made" the recording (and hence where their base or residence is) can, in itself, be difficult.  Traditionally, the "maker" for most recordings was the record company.  However, following changes to the Copyright Act, on 1 January 2005, every performer contributing to a recording (including backing and session musicians) is also a "maker" of that recording, and if any of them are resident or nationals of protected countries, then the recording will be protected.  

Quite apart from the nationality of the artists or the place of incorporation of the record company, copyright protection for public performance also applies if the recording was made in a "protected" country.  Some US artists, for example, have recorded outside the US, making those recordings protected. 

In addition, overseas recordings may attract a period of interim protection following release, and may be protected (wherever they were made) from the date of first commercial release until the earlier of 7 weeks after release, or the date of release in Australia.

Putting these rules together and applying them to a specific sound recording is very difficult.  In order to determine whether a particular sound recording in a particular circumstance is protected or not the following information will be required:    

  • how is the recording being used? (eg for public performance or internet streaming);
  • who "made" the recording, and if it was a record company, their place of incorporation;
  • the place where the track was recorded (i.e. the location of the recording studio);
  • the release date of the track, the country of first release and if released in Australia, the date of first release here; and
  • the names of everyone who performed on the recordings and their citizenship or residency at the date the recording was made. 

PPCA does not believe the law should be this complicated and difficult to apply, but of course PPCA has no control over copyright legislation. We can assure you that PPCA licences allow your business to avoid having to undertake any of this complex analysis of whether a recording is or is not a protected sound recording, as long as that recording is controlled by one of the many copyright owners that license their repertoire to PPCA.

PPCA urges anyone wishing to determine whether or not a particular recording is or is not protected to obtain their own independent legal advice.  

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Who runs PPCA?

PPCA was founded in 1969 by the major record companies. These companies hold shares but are not entitled to any dividends. The current shareholders are Sony Music Entertainment, Universal Music and Warner Music.

The board of PPCA is currently made up of 8 directors comprised of the nominated representatives of the 3 shareholders, 3 directors representing the registered artists (one of which is drawn from the artist management sector) and 2 representing non shareholding Licensors. 

The day to day management of PPCA is delegated to the Chief Executive Officer who is appointed by the Board.

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What is the PPCA Performers’ Trust Foundation?

PPCA established the PPCA Performers’ Trust Foundation. The Trust makes grants for such purposes as: 

  • Prizes for music examinations
  • Music workshops and seminars
  • Encouragement of music and the performing arts

For further information, see the  PPCA Performers’ Trust Foundation.

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Does PPCA have a refund policy?

PPCA issues licences that permit the licensee to use sound recordings and/or music video clips, for the period of the licence, in circumstances that may otherwise constitute an infringement of the copyright in those recordings.   Whether or not the sound recordings / music video clips are in fact used by the licensee during the period of the licence is irrelevant and has no bearing on the licence fee - the payment is for the right to use the sound recordings or music video clips during the relevant period.

Like many goods and services that you acquire, there is no automatic right to a refund (or partial refund) if, for example, you change your mind.   However, in recognition of special circumstances that occasionally arise, PPCA is prepared to consider requests for licence fee refunds in particular, limited cases.   

There are four circumstances in which a potential refund will be considered. They are: 

  1. If the venue stops playing music;
  2. If the business closes;
  3. If the business is sold; or
  4. If a reassessment reduces the annual fee to an amount less than that already paid.

PPCA must be notified, in writing and within the licence period, that you would like to apply for a refund. In other words, retrospective refunds will not be considered, as the licence holder will have already had the benefit of the licence for that period. Any refunds will be calculated on the basis of the licence period remaining after the cancellation date.

You must specify the circumstances for the refund, along with details of the business closure or sale including details of the new owner, the date public performance of recorded music and/or videos ceased and any other relevant information.

An administrative processing fee of $33.00 (GST inclusive) will apply to each approved refund request falling within categories 1,2 and 3, and only credit amounts exceeding this sum will be forwarded. Reduced reassessments (category 4) will NOT be charged processing fee. 

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How does PPCA distribute the money it collects?

At the end of each financial year, the process of calculating the amount available to be distributed to licensors and registered Australian artists (after the deduction of administration costs) is undertaken. This process takes some months and these amounts are distributed in December of each year. The funds available for distribution are allocated on a track by track basis and distributed in one of two ways.

 

  • For recordings featuring Australian artists, an amount equivalent to 2.5% is deducted prior to making any distributions in relation to each track and allocated to charitable, educational and like purposes (including the PPCA Performers’ Trust Foundation, which administers grants for the encouragement of the performing arts). If the featured Australian artist(s) has registered with PPCA under the Artist Direct Distribution Scheme, half of the balance available for that track is payable to the registered Australian artist(s) and the other half is paid to the relevant record label. If the featured Australian artist has not registered with PPCA, then their allocation is forwarded to the controlling record label for distribution to the artist(s) in accordance with their individual record company agreements.  

 

  • For all other recordings (i.e. recordings that do not feature an Australian recording artist(s)), the net funds payable in respect of the relevant track are sent to the controlling record label for distribution to artists in accordance with their individual record company agreements.  

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Where can I get more information on the PPCA and its functions and activities?

Give us a call and ask for a licence information pack.

There are some alternative resources available including the following:
  • Copyright Council - www.copyright.org.au – enter PPCA into the “keyword search” on the home screen which will direct you to their information sheet entitled "Music: Playing Music, APRA & PPCA":
  • NSW Department of Fair Trading - Business Licence Information Service - (02) 9619 8722 or 1800 463 976. They will advise people as to what licences they require by law for their businesses. Other states have their own Department of Fair Trading: and
  • Copyright Act 1968 - you can obtain a copy from the Australian Government Bookshop, or from the web on: www.austlii.edu.au/au/legis/cth/consol_act/ca1968133 

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Are there any recordings for which I don't need a licence?

Licences are required wherever the playing of recordings in a business is protected by the Copyright Act. These are often referred to as 'protected recordings'. There are some recordings released in Australia that are not protected, and for which you do not need a licence. However, working out whether or not a recording can be played in public without a licence requires the application of complex provisions of the Copyright Act, which involve considering:

i. the country where the recording was made; 
ii. the nationality and residence of everyone performing on the recording (including all session musicians); 
iii. the country where the recording was first released; 
iv. the date and place of first release of the recording; and 
v. the age of the recording.  

As a general statement, recordings made in countries such as Australia, New Zealand, the UK, all European countries and Canada are usually protected under the Copyright Act and a public performance licence will be required if you want to play them in your business. Recordings made in the US may also require a licence, depending on the details of the recording and the application of the international copyright laws. All music videos are protected and, when they are used as music on hold, all sound recordings are protected. 

The benefit of a PPCA blanket licence is that it allows your business to play all of its recorded music regardless of whether or not you can determine if it is protected. A PPCA licence eliminates the risk of copyright infringement in relation to the vast catalogues of recordings covered by such a licence. 

For more information on whether or not a recording is a protected recording for which a licence will be needed, see the more detailed information under "What does the PPCA blanket licence cover?" 

And don't forget, licence fees are usually tax deductible (you'll need to talk to your tax adviser).  

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The music I play in my business is sourced from CDs I borrow from friends or from the Internet - do I still need a licence?

Yes, if you are playing protected recordings - regardless of the source. Be wary, though, if you make copies of CDs that friends lend to you or you download music from the Net you may be guilty of copyright infringement. For more information on music piracy contact Music Rights Australia. If you wish to make compilations: 

  • for retail sale / sale to the general public, you should contact  the copyright holders, and AMCOS for further information; or 
  • for sale to other businesses for use as background music, you should contact ARIA or the copyright owners and AMCOS  for further information.  

See our links page for contact details.

If you would like to make copies of legally purchased CDs or downloads for usewithin your business without infringing copyright, provided that the premise is currently licensed under the applicable PPCA public performance tariff, PPCA is pleased to offer a ‘Business Copying’ licence on and from 1 January 2010.  This licence will be offered as an adjunct to the relevant public performance licence for those premises. 

For further details on the rates and conditions of this licence, please view Tariff Z –Business Copying.

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Do I need a licence to copy recordings (physical or digital) to play in my place of business?

Yes.  Although under legislation passed in 2006, you now have the right to make a copy of a legitimately purchased recording that you own (eg. a CD or digital file) for your private and domestic use, this does not extend to the making of copies that will be played in a business context – you will need a licence from the copyright owner (or PPCA) to make such copies. 

To assist our public performance licensees to cost effectively, and legally, utilise music from their own collections in their business, PPCA is pleased to offer a ‘Business Copying’ licence on and from 1 January 2010.  This licence will be offered as an adjunct to the relevant public performance licence for those premises.

This new licence will allow business owners to make copies of legally purchased CDs or downloads for use within their business without infringing copyright, provided that the premises are currently licensed under the applicable PPCA public performance tariff. 

For further details on the rates and conditions of this licence, please view Tariff Z –Business Copying.

Don’t forget that if you are copying recordings you also need to consider the copyright that exists in the song (ie the composition – music and lyrics, known in copyright terms as the ‘musical work’).  To obtain the necessary licences to copy musical works we suggest you contact APRA | AMCOS

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I only play music from the radio – do I still need a licence?

You don't need a licence for sound recordings if you only publicly play traditional radio (not internet radio stations) or TV at your business premises. However, please keep in mind that you will need a licence if you're using recordings from any source as part of a telephone "on-hold" system. The playing of protected recordings via all forms of internet radio, including internet simulcasts of traditional radio broadcasts, requires a licence.

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Should I notify you if I am the new owner of a business?

Yes.  As the new owner, you are legally obligated to ensure that you are complying with the relevant legislation, including the Copyright Act. So you should ensure you have all of the appropriate licences in place. All you need to do is complete an application form and supply us with your details. 

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I’m an event organiser or promoter. Do I need a licence?

It depends on whether the venue where you are undertaking the event is properly licensed for that event. If it’s not properly licensed, you could be liable for copyright infringement along with the venue.  Please contact us to discuss the event that you are organising and we will ensure that your event is correctly licensed.  

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There are regular dance parties at our hotel but we don't organise them - we just provide the premises, collect the bar but don't collect any of the takings. Why should we pay PPCA fees?

If dance parties are held at your premises, it is your responsibility as the owner of the premises to ensure that the appropriate licences are in place prior to the event taking place. We have found that many owners of clubs and pubs pass the cost of the PPCA, APRA and other fees on to the promoter as a legitimate business cost. However, if you choose to do so, then that is a matter to be decided between you and the promoter. 

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Why is the owner of the premises liable for any PPCA licence fees?

Under Section 27(4) of the Copyright Act, the obligation to hold the appropriate licences (including PPCA licences) lies with the occupier of the premises. This is usually the owner of the premises, and not necessarily the third party who is hiring the premises for a one-off event or series of events. 

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I run a nightclub - isn't the DJ already covered?

If the nightclub is properly licensed, then any DJ working solely in that club or any other properly licensed club does not need to take out a separate licence in their own right.  If, however, the DJ is either a mobile DJ operator or plays in unlicensed premises, then a separate DJ licence is required.  

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I paid for the CDs. Why do I need a PPCA licence to play them in my business?

The possession of sound recordings or music videos does not carry any right to undertake their public performance or broadcast. A PPCA licence (or a licence from the copyright holder) must be obtained in advance, whenever protected sound recordings or music video clips are to be subject to a public performance, broadcast or communication.

There is a notice like this on almost every CD, tape or record sold by retailers: 

Unauthorised copying, hiring, public performance and broadcasting of this recording prohibited". 

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Where can I get a copy of the Copyright Act?

A copy of the Copyright Act can be purchased from the Australian Government bookshop. Alternatively you can obtain a copy online athttp://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/

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What is the Collecting Societies' Code of Conduct and how does it impact on the PPCA’s operations?

The Code was an initiative of PPCA and other major Australian collecting societies, and it was developed with the support of the Federal Government. It aims to promote awareness of copyright and collecting societies, to set service standards for our dealings with copyright holders and licensees, and to ensure that accessible and fair procedures are available for the handling of complaints and the resolution of disputes.  

The Code reflects the standards of service the PPCA offers in its dealings with copyright holders and licensees. In particular: 

  • We aim to be fair, honest, courteous and transparent.
  • We make available information about the benefits of and responsibilities involved in obtaining a PPCA licence, and generally about the types of licences we offer to users of sound recordings and music videos:

 

We maintain a Complaints Handling and Dispute Resolution Policy, which explains how we will handle any complaints about our standards of service. 

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What if I want to use a music streaming service to provide background music for my business?

If you are playing protected sound recordings in public you will need a public performance licence, which you can obtain from PPCA on a blanket basis.  Alternatively, you can approach and seek individual licences from the various record labels that control the range of recordings you wish to play.  PPCA recommends that you check with the service supplier to ensure that their terms and conditions allow you to play those recordings in public, particularly in a commercial / business context.

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What happened with the PPCA Nightclub, Dance and Dance Party tariff review?

BACKGROUND TO REVIEW 

On 8 October 2004, PPCA referred to the Copyright Tribunal its proposed licence scheme, relating to the granting of licences for the use of protected sound recordings in nightclubs, and at dances and dance parties. The reference was given the file number CT2 of 2004. View a copy of the proposed licence scheme which PPCA has referred to the Tribunal.

In May 2004, PPCA wrote to its nightclub, dance and dance party licensees, and trade organisations representing these licensees, informing them of its intention to review the structure of its current Tariff "E" and the rate payable for the use of protected sound recordings in nightclubs, and at dances and dance parties. PPCA invited the licensees and organisations to participate in a consultation process in respect of its review of Tariff "E". PPCA reviewed approximately 35 written responses, and licensees raised issues such as their capacity to pay an increased rate, and the fact that not all licensees are operating similar businesses, with factors such as opening hours, cover charges and style of venues varying from one licensee to the next. The submissions did indicate that some licensees are unclear about the nature and scope of the PPCA blanket licence, and uncertain about how it applies to so-called "US recordings". Click here for an overview of the coverage provided by the PPCA blanket licence.

Overall, only a small number of licensees responded, and the process did not lead to any clear consensus as to what an equitable tariff for the use of protected sound recordings in dance venues would be. 

TRIBUNAL PROCEEDINGS  

PPCA therefore formed the view that, before any change should be made to the tariff, a much more comprehensive review, in which all points of view are considered, should take place in order to determine a rate that is reasonable in the circumstances. PPCA considered that the most appropriate and fairest way to progress the review for all parties concerned was to have it conducted as formal proceedings in the Copyright Tribunal, as provided for under the Copyright Act. At the end of September 2004, PPCA wrote to its nightclub, dance and dance party licensees and their representative organisations advising them of the proposed Tribunal proceedings.  

The Copyright Tribunal is a specialist administrative body established under the Copyright Act. It has the function of determining equitable remuneration or reasonable licence fees for a wide variety of uses of copyright protected materials, and has the authority to conduct a review and make an order which sets a reasonable licence fee.

For the purpose of the proceedings, PPCA formulated a schedule of proposed rates based on an expert economic analysis of the fees that should be paid by nightclub and dance party operators.   

The proposed licence scheme contemplated that the licence fee payable would be determined by the venue capacity for nightclubs and attendees for dance parties. PPCA considered this to be a fair and reasonable application of licence fees and the purpose of commencing proceedings in the Copyright Tribunal is to seek confirmation of this in an experienced and regulated forum. 

 

 

A full (three member) Copyright Tribunal heard the matter over a two week period in June 2006. During the hearing the Tribunal was presented with a range of industry and economic evidence. The industry evidence dealt with the nature of the nightclub and dance party industries and illustrated the diverse range of nightclubs and dance parties which operate dance music events in Australia. The economic evidence concerned the expert economic analysis undertaken in setting the proposed PPCA rates for recorded music use in nightclubs and dance parties.  View the Copyright Tribunal’s Order. The Order provides that the Dance Use licence scheme (nightclubs and dances/dance parties) comes into operation as of 23 November 2007.  The annual phasing-in increases for the nightclub tariff will take effect from 23 November 2007 as set out in the following table:  

 

 

23.11.07 - 22.11.08 23.11.08 - 22.11.09 23.11.09 - 22.11.10 23.11.10 - 22.11.11 23.11.11 - onwards
$0.51 $0.64 $0.78 $0.91 $1.05

 

 

 

 

 

 

 

 

 

 

 

Annual CPI increases will apply from the second year.

REVIEW OF DECISION MADE BY TRIBUNAL

In August 2007, the Australian Hotels Association (AHA) lodged an application in the Federal Court for a review of the Tribunal’s decision of 10 July 2007 in relation to nightclubs (“the Appeal”). 

The Federal Court heard the Appeal on 6 March 2008.  The decision was delivered on 13 March 2008 (click here to view the Federal Court’s Reasons for Judgment). The Court dismissed the Appeal.  This means that the Tribunal’s Order of 23 November 2007 continues to be effective and the licence fee rates set out above are confirmed.

Should you have any further questions about the changes, please contact PPCA on (02) 8569 1100.

RELEVANT COPYRIGHT INFORMATION

PPCA has also become aware that there is some confusion amongst its nightclub, dance and dance party licensees as to the nature and scope of the licence PPCA offers.

The licence which PPCA grants to nightclub, dance and dance party licensees authorising their use of sound recordings for dance purposes covers the very wide range of sound recordings that meet two criteria. First, the licensed sound recordings must be owned or controlled by copyright owners that are licensors to PPCA and second, the licensed sound recordings must be protected under Australian copyright law.

As to the first requirement, that the record be owned or controlled by a PPCA licensor, you can check whether a particular copyright owner is a PPCA licensor by looking on the PPCA website at www.ppca.com.au/current_licensors.htm.  That web page also provides a click through to the list of labels controlled by PPCA licensors and covered by PPCA's blanket licence. PPCA licensors include all the major record companies and over 400 other copyright owners.

As to the second requirement, that the record be protected under Australian copyright law, the law in this area is complex and there is no simple test for determining when a sound recording is protected under Australian copyright law.  PPCA is aware that some licensees are under the misapprehension that all US artist recordings are unprotected, and can therefore be played without the need for any licence. This is not correct, and in fact many recordings made by US artists may be protected, because of the way that specific aspects of the legal requirements are applied.

In general terms, copyright protection applies to the playing of a sound recording in public in Australia if that recording was made by a citizen, national or resident of, or body corporate incorporated in, a "protected country".  The US is not a "protected" country at present, but as we explain here, that does not mean that all recordings by US artists or made in the US are necessarily unprotected under Australian copyright law.  

First, determining who "made" the recording (and hence where their base or residence is) can, in itself, be difficult.   At the moment the "maker" for most recordings will be the record company, but after 1 January 2005, because of changes to the Copyright Act as a result of the US Free Trade Agreement, every performer contributing to a recording (including backing and session musicians) will also be a "maker" of that recording.

Quite apart from the nationality of the artists  or the place of incorporation of the record company, copyright protection for public performance also applies if the recording was made in a "protected" country.  Some US artists, for example, have recorded outside the US, making those recordings protected.

In addition, overseas recordings may attract a period of interim protection following release, and may be protected (wherever they were made) from the date of first commercial release until the earlier of 7 weeks after release, or the date of release in Australia.

Putting these rules together and applying them to a specific sound recording is very difficult.  In order to determine whether a particular sound recording is protected or not the following info rmation may be required:

  • who "made" the recording, and if it was a record company, their place of incorporation;
  • the place where the track was recorded (i.e. the location of the recording studio);
  • the release date of the track, the country of first release and if released in Australia, the date of first release here; and
  • after 1 January 2005, the names of everyone who performed on the recordings and their citizenship or residency at the date the recording was made.

PPCA does not believe the law should be this complicated and difficult to apply, but of course PPCA has no control over copyright legislation. PPCA can assure you that PPCA licences allow your business to avoid having to undertake any of this complex analysis of whether a recording is or is not a protected sound recording, as long as that recording is controlled by one of the many copyright owners that license their repertoire to PPCA.

PPCA urges anyone wishing to determine whether or not a particular recording is or is not protected to obtain their own independent legal advice.

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