AUSTRALIAN DEMOCRATS DISSENTING REPORT - Part 3
20. Using Copyright laws for industry policy
The Australian Competition and Consumer Commission [1]
argues the effect of the Act provisions is different to a tariff:
“Firstly, they do not prevent imports but merely restrict importing
to the multinational record companies or their licensees, who can import
and set prices up to what the market will bear. Secondly, the restrictions
ensure that local retail companies are banned from importing. None of
this helps to develop the local industry or create jobs. If Australian
companies had access to this sector, they would be more able to develop
both vertically and horizontally and to foster Australian talent.”
The Act is arguably also inappropriate for regulating parallel imports
because only absolute remedies apply with no provision for scale or quantum
and at the distribution level parallel import restrictions are effectively
an infinite tariff [2].
The International Trade Strategies [3] said
the major labels were using parallel import restrictions to abuse their
power in the market suggesting they have raised prices, intimidated retailers
and exploited Australian artists. The effect of these practices have been
to constrain business opportunities for Australians and bolster their
businesses.
21. Jobs
The impact of the Bill on Australian jobs remains unclear. A Price Waterhouse
report [4] prepared for the Government appointed
Music Industry Advisory Council (MIAC) estimated the music industry accounted
for 50,000 jobs. The recent Australian Bureau of Statistics [5]
identified 541 businesses employing 3,886 jobs in the music industry.
These latter figures include record companies (2,324), manufacturers of
recorded music (493), music publishers (269) and sound recording studios
(800), but does not include rehearsal studios, freelance sound recording
services, the music video business, concert promoters, venue operators,
booking agents, broadcasters, retailers, performers, composers, songwriters
and other related businesses. The Australian Record Industry Association
[6] reported 1993 Price Waterhouse study which
found the total of the same sectors identified in the Australian Bureau
of Statistics survey at 2,654 persons employed, and in addition identified
live performance merchandising (5,055), retail (4,350), artists (33,500)
and songwriters (13,300). The level of employment remains unclear [7],
although it is clear related industries will be affected by the Bill,
such as magazines relying on advertising [8].
The Entertainment Industry Employers' Association [9]
suggested other areas of employment likely to be affected include venue
employment, sound, lighting and related areas of employment and the engagement
of Australian acts with touring international performers.
The Australian Consumers' Association [10]
stated:
“Whatever the real level of employment in the music industry,
it is absurd to claim that the entire industry would be wiped out by
the removal of import controls. The ACA argues there is a different
aspect to this important concern:
- jobs have the potential to increase in the retail sector as consumers
purchase more music, and they most definitely are under threat if
sales continue to decline
- by investing in development of on-line music delivery there will
be greater long term employment and a higher Internet profile for
Australian musicians”.
Other submissions identified possible job losses in manufacturing [11],
publishing [12], smaller record companies [13],
etc..
The Australian Competition and Consumer Commission [14]
argued that a reduction in CD prices would expand demand with consequent
job opportunities in manufacturing, distribution and retailing. It was
suggested existing jobs in importing, performances (musicians and singers),
and indirect employment such as stage hands and roadies, were unlikely
to be affected. However, individual retailers who did not react competitively
would exit the market.
22. Profits
The Australian Competition and Consumer Commission [15]
referred to the huge profits of record companies set out in the PSA report
- average return on shareholders' funds at 55.2% in 1989 when the average
for other companies that year was 10.9%. The Australian Bureau of Statistics
[16] found operating profits before tax for
record companies and distributors as a percentage of total income was
6.1% [17], and for all sectors (record companies
and distributors, manufacturers, publishers and studios) was 7.5%.
The Australian Record Industry Association [18]
suggested the claim of super profits was a “beat up”:
“The most recent study by the Australian Bureau of Statistics
showed 7.5% profit. The ACCC's reliance on the PSA's claim of 55% profit
on shareholders funds is an inappropriate measure that the PSA wouldn't
even publish in its 1990 report. The measure is inappropriate because
the value of the copyrights is not shown on a record company's balance
sheet and thus the return of assets profit test gives such a way out
number. In short the ACCC's view of the profit measure is misleading
and indicative of desperation of their arguments”.
The Country Music Association of Australia [19]
also challenged the assertion that the music industry was making huge
profits.
The Australian Bureau of Statistics [20] indicate
overall industry profits at 7.5% with breakdowns for the component sectors:
major record companies (7.1%), minor record companies (3.4%), music publishers
(6.9%), manufacturers (16.3%) and sound recording studios (13.8%).
23. Transitional provisions
The PSA report [21] recommended legislation
giving effect to its recommendation to repeal the parallel import restrictions
imposed by sections 37, 38, 102 and 103 of the Act should be delayed for
12 months to allow the industry time to implement necessary contractual
rearrangements.
The Bill makes no provision for transitional provisions. However, the
Government does propose to review the changes after three (3) years [22].
The Southern Cross [23] suggested three (3)
years was too long as the fragile industry structure would be destroyed.
They suggested the review take place one year after the Bill's assent.
24. Censorship
Australian Record Industry Association [24]
suggested an open import regime would mean there was no real control over
the supply of obscene material in Australia and that the existing industry
censorship code would be ineffective against the large numbers of imported
CDs. This was suggested to be a hidden cost of allowing imports.
25. Taxation
It was put to the Committee that a reduction of the present 22% sales
tax would reduce the prices of CD more effectively than a relaxing of
parallel import restrictions [25]. This did
not happen when the sales tax was reduced in 1985 to 22% and there is
no evidence to suggest a tax reduction will be passed on to consumers
in the future [26].
The Australian Consumers' Association [27]
stated:
“The Australian record industry continues to claim that the sales
tax on CDs in Australia is “a whopping 22%”. While consumers
would prefer not to pay tax on any goods or services, taxes are here
to stay and any discussion of an appropriate level of tax for CDs or
any consumer good is a separate issue from whether a particular industry
and its dominant players should receive import protection. The appropriate
level of sales tax must be addressed in the context of the social and
economic implications of tax policy as a whole.”
The Australian Record Industry Association [28]
suggested Internet prices were cheaper because there was no sales tax,
and indicated the Government might be encouraging this through a high
sales tax rate (22.5%). This stock is intended for US sale only.
26. Multinationals and independents
In the music industry the major labels have a significant effect on retail
pricing and distribution. In 1990, the PSA report [29]
estimated the six majors [30] supplied 85-90%
of the total Australian record market, while the major internationals
(multinationals) supplied approximately 70% of the wholesale market [31].
The Australian Consumers' Association [32]
list the leading companies and their global shares as PolyGram (19%),
Time Warner (18%), Sony (17%), EMI (15%) and BMG (13%).
The Australian Competition and Consumer Commission argue:
“Another element to be considered in comparing prices is the strategies
adopted by the record companies. Prices may have been artificially low
for the last several years as the companies have attempted to be on
`best behaviour' or at least better behaviour, while the issue of parallel
importing has been before government...However, the Commission has noted
with interest the apparent disruption of such behaviour when a favourable
decision to the companies has been anticipated, including a record company
increasing prices to higher levels” [33].
The International Trade Strategies [34] suggested:
“The real issue is that the ban on parallel importing gives the
international recording companies control of the distribution of music...Distribution
of imported music is without question the largest area of business in
the music industry in Australia, and the most profitable. Removal of
the ban on parallel importing would open this business to others. The
campaign on parallel importing is most likely inspired by the desire
to keep the very profitable distribution market closed.”
The Australian Music Publishers' Association and Australasian Mechanical
Copyright Owners' Society [35] stated:
“The Government seems to have in its sights the multi-national
record companies and the large retailers. In fact the Bill will disadvantage
these large companies less than it will independent Australian record
companies and small retailers. Multi-national record companies will
alter their business strategy to adapt - the smaller companies will
be forced into closer alliances with the multi-nationals or forced out
of business. Large retailers will benefit from international purchasing
power at the expense of the small independent retailer”.
The Australian Music Retailers Association [36]
stated:
“The major chains which operate in Australia have international
connections, and therefore well established credit and supply lines,
either from the resources of their parent companies or directly from
the international record companies. These lines of credit are not available
to independent retailers.
Independent retailers do not have the same benefits. Small independent
music retailers lack not just time, not just the infrastructure, but
the buying power to `shop the world' to stock their stores”.
The Australian Record Industry Association [37]
suggested the multinationals would be the last sector hurt by the Bill
because “a sale is a sale of a title for the multinational company
whenever it takes place”, while local sales would be affected because
the local sale would be being replaced by a foreign sale.
Shock Records Pty Ltd [38] expressed doubt
as to whether small companies would be able to compete in the new environment:
“In a price driven market, small record companies would not be
competing with the multinationals, but rather with importers. There
would be less profit in trying to develop your own repertoire. The market
will see a new range of `free-riders' and `cowboy operators' importing
product that others are marketing. Lines of supply will be confused
and irregular. A chaotic, unstable market is not a conducive environment
for local investment”.
Shock Records Pty Ltd [39] argued that the
Australian music industry included businesses other than the multi-nationals,
which would be severely hurt by the Government's proposal. Shock Records
Pty Ltd claims over 200 hundred Australian owned record companies listed
in the Australian Music Industry Directory will be affected and in particular,
small retailers will be affected rather than the large chains because:
“Small retailers won't be able to compete with volume discounts
these chains will receive. Nor will they have access to trading terms
or credit facilities in these foreign markets. The price war which would
result from a new copyright environment will drive small Australian
owned businesses broke”.
In Australia, Part IV of the Trade Practices Act 1974 addresses
the possible market power which might be expected to be applied by the
multinationals to a range of restrictive trade practices. The PSA report
[40] notes section 46 is unlikely to apply
because it does not directly cover excessive price and inefficiency as
an abuse of market power and a restrictive definition of the market would
need to be applied.
27. Promoting Australian Talent
It was put to the Committee that without the parallel import restriction,
the music industry will reduce or stop promoting Australian talent [41].
There may be some validity to these submissions, but different sectors
of the industry make different commitments to Australian talent and it
is these different sectors which need to be considered separately. The
Australian Consumers' Association [42] drew
a sharp distinction between the responsibilities of the commercial sections
of the Australian music industry and the cultural objectives for Australian
music:
“The music business is a commercial venture, and industry development
assistance should occur in much the same way as in other industries
- to provide assistance in areas where there is a potential market failure
to ensure skills or product development. Cultural investment should
be `transparent' and directed at those areas identified as being in
the interest of the general community - to justify parallel import restrictions
on the basis that transnational corporations are making such decisions
on our behalf is insulting”.
The Australian independent labels make up a small portion of the industry
and their sales represent a small proportion of total sales in Australia
[43]. However, of the albums released by Australian
artists in 1996-97 independent labels released 673 compared to releases
by the major record companies of 411, and of non-Australian artists albums
the independents released 2753 and the majors released 2783 [44].
This should not however be the only factor in determining their relative
importance in Australia's evolving music culture. For example, the Country
Music Association of Australia [45] claimed
20% of Australians favour country music and of that country music Australian
content, 51% of Australians favoured Australian music, suggesting an important
cultural music despite an output valued at $258 million (in 1996) compared
to total income of music businesses in Australia of $1,064 million [46].
Australian talent also extends to those who write, publish and are employed
within the broader music industry [47].
The Australian Music Publishers' Association and Australasian Mechanical
Copyright Owners' Society [48] stated:
“...the music publishing industry depends on an active recording
industry to record and promote the works of their composers; and a vibrant
retail structure in order to effectively market the product. Successful
records lead to exposure for artists which increases their (and composers'
and publishers') earnings from broadcasts and live performances”.
The Media Entertainment and Arts Alliance [49]
expressed particular concern about the indigenous record industry:
“The Senate Committee should be aware that the Australian Arts
and Entertainment industry is a fragile one. The [Media Entertainment
and Arts] Alliance and artists look to the Government to assist in nurturing
our industries and supporting the ongoing development of Australia's
cultural and artistic soul. Not only are the [Media Entertainment and
Arts] Alliance and our members concerned about the possible immediate
effect of the proposed Bill on our members livelihood but we are also
concerned about the impact on the broader industry”.
Shock Records Pty Ltd [50] pointed to a number
of consequences for Australian artists if the parallel import restrictions
were abandoned, including the loss of retail space assigned to local artists
and the loss of ability to market new Australian artists with direct flow
onto less likelihood of overseas success, declining investment in Australian
artists, reduced exports and reduced spending in other parts of the music
industry (graphic artists, photographers, studios, recording engineers,
manufacturing plants, advertising, etc.).
The Australian Music Retailers Association [51]
argued:
“...department and variety stores are not `music retailers' -
they are vendors of a wide range of products, CDs among them. Unlike
dedicated music retailers, they have no interest in sustaining a music
retail sector which fully services the consumer. They generally sell
only the best sellers, do little by way of product promotion and represent
one of the greatest threats to music retail should parallel importing
be introduced”.
J Albert and Sons Pty Ltd/Albert Productions [52],
a wholly owned and operated Australian business stated:
“The Government's proposal to repeal the 1968 parallel importation
laws will mean that our past policies of investment and support for
Australian artists and composers enabling them to become established
and eventually productive cannot be implemented in the future. This
Company's income stream and thus it's profitability will be severely
curtailed leading to an ultimate downsizing of our overall operations
affecting Australian composers, Australian artists, Australian recording
employees and Australian production and marketing staff”.
Australian music was argued to be a part of Australian culture [53].
The International Managers Forum [54] stated:
“The commercial environment which allows for the encouragement
and fostering of creativity, cultural development and diversity is set-up
solely within the framework of the Copyright Act 1968. This in turn
is enfolded within Australia's numerous international treaty obligations
in the intellectual property area. It is our submission that the interference
with this framework proposed by this Bill will seriously disadvantage
the ongoing development of the many talented Australians who are integral
to and indeed the basis of our developing cultural heritage”.
In contrast to these submission Ann Capling [55]
submitted:
“ARIA argues that they need the profits generated by their import/distribution
monopoly in order to promote Australian talent.
ARIA has never presented any public evidence to support these claims.
In fact, many organisations involved in the Australian record industry
have argued that the `Gig Six' are highly risk averse when it comes
to promoting Australian artists and repertoire. Indeed, the Big Six
often behave in a predatory fashion, signing Australian acts only after
they have already been nurtured and promoted by smaller independent
record companies.
ARIA and the Big Six were given the opportunity to demonstrate their
alleged support for the Australian music industry. In April 1995 they
agreed to negotiate new industry development arrangements which would
commit them to invest $270 million over three years in developing Australian
A&R and promoting exports. In return, the Labor Government agreed
not to allow parallel importation. Of course, none of these industry
development arrangements ever eventuated. Hence the continuing scepticism
about ARIA's claims”.
The Australian Consumers' Association [56]
also argued:
“It is ludicrous to argue that without the majors Australian artists
would not receive support - because they only receive substantial support
when they have established their commercial viability - and that is
a factor that is hardly likely to change because of the introduction
of parallel importation.
In fact, the need to provide a differentiated product has been shown
in other markets to be a viable strategy. The best way to compete with
foreign competition (apart from asking regulators to establish trade
protection) is to develop a unique product - and, in the music business,
the obvious source of a differentiated product is local talent”.
Christopher Pyne [57] also argued that promotion
of new talent as an industry aim was questionable:
“The most superficial argument is that in an unprecedented, altruistic
gesture by the industry the superfluous profits that they derive from
the prohibition of parallel importing are distributed towards the support
and promotion of new talent”.
John Quiggin [58] indicated the benefits of
parallel importation restrictions accrued to the more popular performers
and to the detriment of the less popular, and increase obstacles to the
entry of new performers, concluding:
“…the main effect of international price discrimination is
to transfer wealth from Australian consumers to US record companies.
The effects on participants in the Australian music industry are mixed,
but probably negative in aggregate”.
The Media Entertainment and Arts Alliance [59]
and the Australian Music Publishers' Association and Australasian Mechanical
Copyright Owners' Society [60] indicated further
support for the local industry might be achieved through changing the
content requirements for Australian music in the broadcasting legislation
[61]. The Country Music Association of Australia
[62] contrasted the $1 million provided to
the music industry as part of the Export Market Advances program with
the “paltry” amount:
“compared to monies annually poured into the film industry ($150
million) and sport ($100 million) - not to mention any number of other
tariff/ subsidy protected industries...Why is music treated differently?”.
Ann Capling [63] discussed the operation of
international agreements affecting copyright protections and in particular
parallel importation restrictions and the conflict between cultural and
economic imperatives. The effect of allowing international domination
of the Australian music industry restricted the access to Australian composers
and performs. She argues “exclusive import rights of the majors undermine
Australia's distinctive national culture”. Mark Davison [64]
suggested the existing parallel import restrictions provided more assistance
to foreign economic interests than it did to the Australian music industry.
He then suggested this might be circumvented through direct government
assistance rather than the present hidden assistance which flows from
current investment regimes in the Australian music industry.
28. Other countries
The Australian Record Industry Association [65]
stated:
“The Coalition has relied on Canada, Singapore and Japan as its
three examples to support its policy. This is absurd:
(a) Canada has exclusive parallel import rights similar to Australia's
and the US's;
(b) Japan is a unique language country, imports of Japanese CDs is
not an issue;
(c) Singapore has an ever increasing piracy problem now approximately
30%. Singapore is a powerful illustration of why parallel imports of
copyright products is and will be a failure”.
Before the Committee Smund Fiskvik [66] stated
in written submissions:
“The brief story is that Norway has free importation until July
1993, when the restriction against parallel importation was put into
force. As from January 1994 importation from EU countries was allowed
(but not from US, Canada, Australia, Mexico, Far East, etc.).
The result after four years regulation are as follows:
1. The price did not rise. Development of Norwegian prices had been
quite normal, and prices are also normal compared to other European
countries.
2. The IFPI members substantially increased the number of Norwegian
releases - that as a result of improved economy because of regulation.
3. Reduction in piracy imports.
For the time being there is a big discussion in parliament based on
a proposal from Norwegian Conservative Party to drop the regulation.
The final decision will be taken before summer, but the Government supports
the bill, as does the Labor Party. So the likely outcome is that the
regulation will survive.” [67]
Christopher Pyne [68] stated:
“…with Norway and New Zealand now set to dismantle their
respective prohibitions on the parallel importing of CDs, it is perhaps
appropriate to consider the real significance of this development with
reference to the Bill presently before the House [(sic)]…The real
significance in Norway's anticipated return to a parallel importing
policy is the tacit acknowledgment of the impact that shopping on the
Internet has had on small business”.
The PSA report [69] notes Sweden does not
have parallel import restrictions on copyright goods and that Singapore
and Malaysia strengthen their copyright laws against piracy without parallel
import restrictions.
The Australian Record Industry Association [70]
claim that the existing parallel import restrictions in Australia are
consistent with all major trading countries and that emerging markets
are introducing such laws. Hong Kong is cited as an example that the free
market world is strengthening its intellectual property rights laws with
the introduction of parallel import restrictions.
The Attorney General's Department [71] argued
Canada and Singapore are both members of the World Trade Organisation
and allow parallel imports and noted:
“Officials within the Canadian Government have advised that Canadian
law permits parallel importation of copies of sound recordings in some
circumstances. We understand that parallel importation of copies of
sound recordings is permitted where the copy was made by the person
who licensed the exclusive licensee, or assigned the copyright, for
Canada. Border measures exist to prevent the parallel importation of
copies of sound recordings from countries that are not members of the
World Trade Organisation or of the Berne Convention.”
29. The future
Several submissions recognised that the existing copyright protections
were inadequate to deal with the evolving technologies [72].
The Australian Consumers' Association [73]
noted:
“As more Australians access the Internet, particularly young people
who are the major market for recorded music, the market share of local
retailers will decline. Unless retailers are able to access a competitive
supply at the wholesale level. There are important equity issues associated
with the use of new technologies. We seek to avoid a society of technology
haves - with cheaper prices, the ability to compare, and vast choice
alternatives - with a society of technology have nots - which
is more expensive, has restricted choice, and offers less information
about new horizons in cultural development”.
Mark Davison [74] set out the impacts of the
Internet as including:
(i) changes to the way sound recordings are marketed so that geography
plays a smaller role;
(ii) down loading of sound recordings for repeated use or a pay per
listen with moves away from physical sound recording media;
(iii) changes to the retail sector which relies on physical sound recording
sales; and
(iv) reduced demand for physical sound recording.
The Australian Consumers' Association [75]
set out their views on the on-line delivery of music and stated:
“The commercial opportunities will be enormous as the on-line
music market continues to develop. But to be a part of the global market
the Australian music industry needs to develop an Internet `presence'.
We need to further develop our knowledge and skills in the on-line music
business with the objective of promoting and selling Australian music
through the Internet.
However, there are some important barriers to development of on-line
music distribution, which need to be recognised. These include:
- the size of the consumer market - which is dependent upon access to
affordable equipment and telecommunications services, and acceptance
of the Internet as a purchasing experience;
- development of secure Internet transaction technologies, and
- the availability of standardised portable storage mechanisms (such
as writable CDs and DVD).”
The Australian Record Industry Association [76]
set out the stages of future development in the music industry:
- continued CD ROM title release
- joint venture activity with book, games and small boutique software
development organisations (eg recent Australian release of the Kulcha
CD ROM, a world first bridging music and games)
- Internet and Pay TV services used to communicate marketing and promotional
material
In the medium term
- complete works of artists released on a single disc
- local production and release of sophisticated CD ROM products
- CDs continue to be sold at retail
- Internet and other service providers to commence distribution direct
to customers
- in-store production of CDs to commence
In the long term
- music on demand via Full Network Services and Interactive Multimedia
Products
- direct sales to consumers
- distribution of artists of their products direct to the market”.
The Country Music Association of Australia [77]
expressed the sentiment we must adopt for the future:
“We must all work to replace confrontation with cooperation and
consultation, so that the creative community can go forward with business
and government to end uncertainty, and create a new, positive environment
for the future development of wonderful Australian artists and their
music”.
30. Conclusion
I will stately clearly here the data supporting the various viewpoints
is often exaggerated. I have no doubt that most of the arguments put to
me have been founded on self-interest. This is not relevant and has not
entered into my deliberations about this Bill.
I am concerned that this debate has focussed on “sound recordings”
and has not addressed the broader issues of copyright parallel import
restrictions of all works and other subject matters [78].
This is unfair to the industries targeted by this Bill [79]
and an inappropriate policy approach. If this Bill becomes law, Australia
will have three parallel import regimes - limited restriction for books
based on availability, no restrictions on sound recording (and packaging
and labelling) and complete restriction on other works and other subject
matter [80].
These broader copyright issues need to be considered further and appropriately
debated. I do not advocate a single solution to each industry, work or
subject matter, but rather a broad discussion of all industries, works
and subject matters. Further, given the significant effect of international
agreements in the copyright arena and the binding effect of these international
agreements (and their considerable cultural and economic effects in Australia),
the Australian Democrats believe there should be greater participation
of the Parliament in determining the nature of Australia's international
agreement.
Nature of copyright
Copyright may be argued to be a right [81],
but it is also an economic tool to correct “market failure”
where there are creative and intellectual works being created [82].
The legislative grant of a temporary monopoly in the work or other subject
matter can only be justified to overcome the market failure and ensure
the efficient production of works and other subject matters [83].
This principle applies to copyright in sound recordings.
However, as with most theories, the reality is a lot more complex, and
the simple theory is likely to have effects across the Australian community
and the existing Australian music industry. It is these effects that must
be considered in justifying the grant of parallel import restrictions
in sound recordings.
The historical context of copyright protection is instructive to this
debate. Copyright protections arose out of a controversy, mainly in England
and France, between booksellers and lawyers about whether authors had
a right to control the use of their books as a form of property [84].
The debate centred around the control of ideas and whether an idea could
be owned like a tangible form of property (for example, a house or a cow).
In England this debate was resolved by a compromise whereby a Statute
was passed: “An Act for the Encouragement of Learning”.
This gave authors a limited property right to the expression of the idea.
This was a necessary compromise because the precursor industry to today's
publishers had a major interest in preventing books from being copied
with the advent of the printing press, and Henry VIII wanted to stop certain
publications being printed and distributed in England. Through certain
decrees and Acts and Ordinances the Company of Stationers maintained a
monopoly on book printing, and the heads of government before and after
the Restoration period regulated the printing for political reasons. These
measures entrenched the monopoly on book printing by preventing the import
of printed books from abroad. Perhaps more interesting, the scheme was
supervised through the Star Chamber. After a brief period when the monopolies
were removed, the Statute of Anne was passed which effectively re-introduced
order into the printing industry, while curtailing the monopoly of printers
(and sellers). It is out of these developments that the present day copyright
and parallel import provisions arise [85].
This evolution of copyright into the present laws in Australia reflects
the tension between respecting the rights of the author while maintaining
the protection for the industry which exploits the author's creation.
Here we are concerned with balancing the public interests in having cheaper,
etc. copyright materials and making sure copyright owners (authors and
exploiters) have adequate protection. The Australian Democrats deal with
each issue of the parallel import provisions in the Act on their particular
merits in recognition of this balancing between the private and public
interests.
I also recognise the distinction between physical property and intellectual
property in traded goods. The Australian Record Industry Association [86]
set out the distinction:
“There has been a failure, or simply an unwillingness, to understand
that copyright products (CDs, books, computer software and movies) are
not traded as physical traded goods from country to country but instead
are non-physical intellectual property rights traded by exclusive licences
to make, market and protect the copyright products in a particular country
(territory)”.
In justifying parallel import restrictions in sound recordings the guiding
principles should be that the benefits to the community of granting the
monopoly must outweigh the detriment to the community. However, I am well
aware of the disagreement whether intellectual property rights are in
fact beneficial to the community [87] and the
diversity of levels at which this debate takes place (for example, at
the national, regional and international levels) [88].
Intellectual property laws
The Universal Declaration of Human Rights also recognises the right to
protection of a person's mental labours and seeks to balance two (2) public
interests – the rights of the individual and the needs of the community
[89]. Article 27 of the Universal Declaration
of Human Rights provides, in part:
“(1) Everyone has the right freely to participate in the cultural
life of the community, to enjoy the arts and to share in scientific
advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production
of which he is the author”.
Australia's copyright laws are generally consistent with international
conventions and agreements which require minimum standards. The Berne
Convention for the Protection of Literary and Artistic Works (the Berne
Convention) and the Universal Copyright Convention address copyright in
musical and or literary works embodied in a sound recording. The Geneva
Convention for the Protection of Producers of Phonograms Against Unauthorised
Duplication of the Phonograms is directed at piracy. The Rome Convention
for the Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (the Rome Convention) grants public performance and broadcasting
rights on a reciprocal basis to complying nations. However, the Act is
not based on these conventions. For example, sections 37, 38, 102 and
103 of the Act are not based on Article 5 of the Berne Convention and
Article II of the Universal Copyright Convention [90],
while section 135 meets Australia's commitments under Article 16 of the
Berne Convention [91].
The Uruguay Round's General Agreement on Tariffs and Trade (GATT) included
a multilateral agreement governing the Trade Related Aspects of Intellectual
Property Rights (the TRIPs agreement). Under this TRIPs agreement, Australia
is required to conform to the Berne Convention standards and similar standards
to the Rome Convention [92], and failure to
conform to these standards leaves Australia open to trade sanctions [93].
These are minimum standards. Australia should not be subjected to trade
sanctions where those standards have been achieved and we should not be
intimidated into higher standards which may not be to our national benefit.
Mark Davison [94] states:
“At present, no multilateral international treaty requires its
members to prohibit parallel importing. The issue is not addressed in
the Berne Convention, and the TRIPs agreement, which is contained within
GATT, expressly states in Article 6 that `nothing in this Agreement
shall be used to address the issue of exhaustion on intellectual property
rights'''.
The TRIPs agreement was pursued by the wealthy “northern” nations
to overcome trade distortions and economic losses to piracy for the direct
benefit of their economies [95]. Parallel importation
was an issue pursued by the US at GATT and opposed by most other countries.
There are no specific parallel import requirements in TRIPs and
the representation by the US Ambassador to the Committee are not
a threat. In fact, there are a range of issues, including rental rights,
the rights of producers, etc. to initiate actions against pirates, moral
rights, etc. which have not been resolved by TRIPs and await further negotiation.
The parallel importation rights are one of the issues which may require
further discussion and negotiation. In the mean time, it is incorrect
to state parallel import restrictions are in breach of our TRIPs obligations.
My concern in this debate is the mantra that copyright protection encourages
the creation of cultural works (such as Australian sound recordings) and
the links to economic development. These assertions need to be carefully
considered. The utilitarian/development justification of copyright is
open to serious question [96]. Fiona Macmillan
[97] succinctly states the problem:
“Is copyright law about encouraging creativity and protecting
the output of that creativity or is it about stimulating commercial
exploitation of creative/cultural output?”.
Examples of the failure of copyright to encourage and protect creativity
include the protection of Australian indigenous art [98],
the evolution of art, etc. through subconscious copying [99]
and the failure to recognise moral rights which maintain the creator's
right to preserve the integrity of a work [100].
The complex economic market failure justification for copyright is uncertain,
as commodification has alienated the author from the work (for example,
by a completely alienable property interest).
Therefore, the argument that parallel import restrictions are necessary
to maintain and develop Australian music culture are by no means certain.
This is complicated by the predominant place of large corporation with
internationally associated conglomerates in the Australian music market
[101] and globally [102],
which are both vertically and horizontally integrated [103].
The Australian Bureau of Statistics [104]
showed most recorded music sold in Australia originates from overseas
artists and the music of Australian artists represented approximately
16% of total sales in Australia [105]. Other
submissions stated that most Australian music is retailed within Australia
[106] and the value of music sold in Australia
is confined to a small proportion of high volume titles [107]
which are predominantly non-Australian sound recording by non-Australian
artists [108]. Ann Capling [109]
set out the issue for Australia with respect to parallel importing of
sound recordings:
“…it can be argued that the exclusive import rights of the
majors undermine Australia's distinctive national culture. In essence,
the import monopoly rights allows the majors to determine what CDs they
will release in Australia. Because profits are determined by volume
sales – 30% of their revenue is typically generated by their top
five sellers – the majors release only what they expect will be
big sellers…Since they are in business to make money, the majors
have no desire to promote Australian acts which are likely to become
internationally profitable. As a result, alternative and specialist
music by Australian performers is marginalised by the domination of
the (predominantly US-owned) majors…There is little doubt that
this particular aspect of copyright facilitates the globalisation of
a mass culture of commercialised mediocrity” [110].
John Quiggin [111] suggested (accepting there
was price discrimination between Australian and other markets) there might
be some benefits to particular performers while others would be detrimentally
affected, and the overall effects would most probably be negative from
maintaining parallel import restrictions (which allow price discrimination):
“Performers (both Australian and foreign) will benefit if they
have monopoly power in dealing with record companies, that is, if they
are well established and have fans who are willing to pay premium prices
for the music of the bands. Such performers will share in the monopoly
rent associated with price discrimination. On the other hand, since
the total demand for recorded music will fall in response to higher
prices, so will the number of different records produced and therefore
the number of performers whose music is produced by the major record
companies. Thus, while price discrimination will increase the returns
to successful performers, it will reduce returns to others and increase
the obstacles to the entry of new performers. In summary, the practice
is likely to reinforce the highly unequal distribution of earnings which
is a well-known feature of the popular music industry.
The aggregate impact on performers depends on the elasticity of demand
for recorded music. If aggregate demand is elastic, an increase in price
will result in a more-than-proportional reduction in sales, leading
to a reduction in total expenditure. Since net returns to record companies
are increased, total income of other participants in the industry (musicians,
production workers, retailers, etc.) must be reduced. Although there
do not appear to be any reliable studies, the existence in the entertainment
market of many substitutes for recorded music implies that demand should
be elastic.
Independent producers of recorded music will benefit from higher prices
of competing products. The existence of such producers will partially,
but not completely, offset the negative impact of international price
discrimination on Australian consumers and performers seeking entry
to the industry”.
However, these analyses have not taken into account the likely adverse
impacts of changing the parallel import restrictions in the short term.
In submissions from a range of different individuals and representative
groups in the Australian music industry, it is apparent that Australian
artists [112], Australian record companies
[113], manufacturers [114]
and retailers [115] are likely to be adversely
affected. The Government has recognised some of these consequences, identifying
local manufacturers, sound recording companies and composers [116].
However, the extent of the Bill's effects in the Australian community
are not entirely clear. For example, piracy has been stated to be a considerable
problem by the industry [117], accepted to
be a concern by the Government [118], and
yet the Australian Customs Service [119] has
no plans to change its operations to deal with the projected increases
in pirated material entering Australia [120].
Other areas of concern include free riding [121]
and circumvention of copyright laws [122],
both of which are likely to be detrimental to the Australian music industry,
at least in the short term. These are valid concerns and they have not
been addressed by the Bill.
The second mantra is the need for strong intellectual property laws to
attract technology and foreign investment as a basis for economic development.
The examples of the so-called “tiger” economies were achieved
without enforceable intellectual property laws. However, the Australian
Democrats believe strong and enforceable intellectual property laws are
necessary. But, where there are no strict international obligations to
meet minimum standards for intellectual property laws Australia should
carefully consider each circumstance. This is especially relevant as Australia
is a net importer of intellectual property [123].
The PSA report [124] succinctly stated the
concern:
“The PSA is concerned that monopolies granted as a result of intellectual
property rights may unnecessarily diminish competition in the Australian
market. Also, given that Australia's principal exports are farm products,
minerals and tourism, while its imports are technologically-intensive
goods…enhanced intellectual property rights can only adversely
effect our terms of trade. It is therefore by no means certain that
Australia should always seek to align itself with the first world countries
of Europe, North America and Japan, which clearly have a vested interest
in strengthening intellectual property rights on a global basis”.
This concern is reinforced by the considerable private control of trade
between states exerted by large corporations through transfer pricing,
taxation schemes, reduced accountability, price discrimination, etc. [125].
Further, Australia is a minor market, making up approximately 2% [126]
of the world sound recording market, so we need to be particularly cautious
of foreign control of our Australian music industry. The UK Monopolies
and Mergers Commission [127] concluded:
“We find that a complex monopoly situation exists in their [the
major music companies] favour by reason of their pricing practices,
arrangements on parallel imports and terms of contract with artists”.
The evidence before the Committee suggested that legislation removing
the parallel import restrictions as they appear in the Act would not breach
our existing international commitments [128].
Therefore, we must examine a range of interests, including our own national
interests before we undertake the removal of parallel import restrictions.
Property rights
Our current laws cover copyright in terms of property - an institution
that is given the sanction of positive laws for a social purpose. The
traditional concepts of property are a far cry from our current needs
and are arguably the source of many of our present difficulties [129].
Evolving technology (discussed further below) also challenges many of
the intellectual property laws and our notions of equitable access and
distribution to property [130]. For example,
the 1886 Berne Convention clearly set out that mechanical reproduction
of musical works did not infringe copyright and at that time there was
very little mechanical reproduction. However, the introduction of the
gramophone made mechanical reproduction of musical works easier and more
available. As a result the 1908 Berlin Revision of the Berne Convention
specifically addressed the exclusive rights of musical work authors and
mechanical reproduction [131]. Further, the
existing regime does not adequately recognise the rights of all creators
of intellectual property, although some of these issue are presently being
considered by the Government and Parliament [132].
It was notable the submissions supporting the Bill did not address the
issue that copyright is property [133]. Various
groups pointed out the effect of free riding if parallel imports were
allowed [134], and this was not refuted. The
effects of free riding are likely to be a significant undermining of the
value of a person's copyright, because the copyright owner will be funding
the promotion, etc. of their copyright without receiving the full return
on that copyright [135]. This will diminish
the value of the property of the copyright owner.
However, where a product has been legally marketed and legally sold and
bought, the property right in that product is not diminished by importation.
This is an issue of distribution [136]. As
an example, the submission by Rough Cut Music Pty Ltd [137]
compared a sound recording to other products is, in my view, failing to
distinguish between the likely market failure from the distribution of
sound recordings which are the subject matter of the copyright and other
products which may not be the subject matter of the copyright [138].
Copyright should not create effective property rights in products
which are not themselves copyrightable. However, the issues of royalties,
piracy, Australian culture, etc. are compelling factors in this assessment,
and they determine whether a legally marketed and legally sold and bought
product should be granted the rights of property - an institution that
is given the sanction of positive laws for a social purpose.
Impacts of technology
A number of submissions addressed the impacts of technology on the creation
and sale of sound recordings [139]. There
seems little doubt that rapidly advancing technological changes will also
affect the Australian music industry. Mark Davison [140]
suggests:
“The only aspect of the music industry that will not be directly
affected by these changes is the actual creation of the original music.
Composers will still compose, performers will still sing and play instruments
and technicians will still record and mix music. The “raw”
product will still have to be produced regardless of the changes in
how it is reproduced and distributed.”
The ability in the near future to down load sound recordings from a range
of sources (for example, the Internet, etc.) and then store that music
as music files, writable CDs, digital (video) cassettes, etc. will make
the present issue of parallel importation very different. The Australian
Consumers' Association [141] set out the issue:
“…there is a doubt whether restricted import arrangements
are sustainable in the long term, in a liberalised trade environment.
Emerging technologies are likely to render parallel importation arrangements
meaningless”.
This is particularly relevant as Australia allows parallel importing
for personal, non-commercial uses (section 102 of the Act). These technological
advances are likely to change the present distribution arrangements and
issues of piracy, royalties, etc. are likely to change significantly.
Our laws will need to be adjusted to meet these circumstances [142].
The existing provisions of the Act may be sufficient to prevent a transmission
of copyright material in digital form as there is an existing exclusive
right of reproduction vested in the copyright owner [143].
Since the transmission of copyright material in digital form involves
a reproduction of the material without the consent of the copyright owner,
it breaches the current Act. This will arguably maintain the parallel
import provisions because the copyright owner's consent to reproduction
may be limited to the exclusive distributor in Australia achieving the
same ends as a parallel import restriction [144].
However, the effectiveness of these provisions is open to question, because:
(i) courts (and tribunals) may arguably find the legal purchase of
a legal sound recording transmitted and reproduced for a non-commercial
purpose will arguably be reproduced with the copyright owner's permission
and will not breach parallel import restrictions; and
(ii) the ability to detect and prevent transmission of copyright material
is likely to become significantly more difficult.
Examples of the transmission of sound recordings over the Internet and
other related issues are already an active concern [145].
This issues may be addressed in part through a transmission right and
the national legislation following the World Intellectual Property
Organisation Copyright Treaty and the World Intellectual Property
Organisation Performances and Phonograms Treaty [146].
These treaties leave nation states free to determine the conditions for
the exhaustion of distribution rights after the first sale or transfer
consented to by the copyright holder (Articles 6 and 8 and 12 respectively).
Many of these issues are being considered by the Government [147].
However, the courts (and tribunals) are faced with conflicting and competing
policy considerations. Angela Bowne [148]
sets out the issue as it relates to the Internet:
“The extent of appropriation on the Internet raises the issue
whether copyright is the appropriate means for protecting intellectual
property on the Internet. The courts are faced with the invidious task
of balancing competing policies: of protecting copyright owners from
substantial inroad into their rights, of permitting access to information,
and of ensuring that service providers are able to carry on business
without fear of being found liable for all infringements of rights
Similar policy considerations have arisen with cable television and
video home recording. In both instances, the US Supreme Court has dismissed
claims of copyright infringement in order to facilitate the growth of
these new technologies…”.
Recent examples of court action include the High Court decision in APRA
v Telstra [149] and the US Supreme Court
in Quality King Distributors Inc. v L'anza Research International Inc.
[150]. Both these cases highlight policy
conflicts in the copyright regime. The US Supreme Court, Quality King
Distributors Inc. v L'anza Research International Inc. [151],
involving the re-import into the US of a product which had been legally
bought, but without permission and sold by unauthorised dealers. The Court
was asked to decide between two (2) conflicting provisions, one a parallel
import restriction and the other an entitlement to deal with a lawfully
made copy. This decision may be distinguished from the proposed removal
of parallel import restrictions in the Bill:
(i) it involved hair care products and not sound recordings and the
copyright was in the labels affixed to the product;
(ii) the copyright owner did not claim unauthorised copies of the labels
had been made, rather they argued the integrity of their marketing system
had been threatened; and
(iii) the goods enjoyed a round trip from manufacture in the US, to
overseas and then back to the US so they were not goods manufactured
outside the jurisdiction.
However, this decision might have been of concern were a court to consider
a digital sound recording identical to another identical sound recording
produced in the jurisdiction, exported and then re-imported into the jurisdiction.
These are real concerns because the costs of export, import and manufacture
are low and the speed of transmission will meet most market opportunities.
The APRA v Telstra case [152] concerned
the infringement of the exclusive right of copyright owners to a “diffusion
service” for “on-hold” music (subsection 26(1) of the Act).
The High Court held (by a majority of 3-2) that subscribers to a service
or incidental to a service of a land line telephone are part of a “diffusion
service” and subject to copyright rights. This arguably includes
computers connected through the telephones to the Internet [153]
and arguably means that those receiving a “service” without
actually wanting it may be open to copyright infringements. This is a
significant concern as it might impose restrictions on the availability,
use and effectiveness of electronic communications and transactions contrary
to the best interests of the community.
CD prices
I am not satisfied data has been provided to the Committee which established
the prices of sound recordings will fall if parallel import restrictions
are removed from the Act. The data presented to the Committee was obscured
by different comparisons, the age of data and a range of inconsistencies
across data sets. It is apparent that data has been presented which supports
the particular advocate's arguments. I also note that the nature of the
global music industry is changing through pricing differences in different
intra-territory regions as well as discounting across time and music styles
within a given market. These complexities make an assessment of price
differences inconclusive.
Over the years, the music industry has a poor record in passing on costs
savings to consumers:
(i) in 1985 sales tax was reduced by approximately 12% and this costs
saving was not passed on [154];
(ii) economies of scale in manufacturing CDs are well recorded (for
example, Australian Record Sellers Association submission to PSA report
[155]) but costs saving were not passed
on despite the considerable increase in the number of CDs now made and
sold [156]; and
(iii) the costs of technology introduction usually declines over time
(for example, CHOICE magazine [157] showed
CD players declined from $700-800 in 1985 to $200-300 in 1990) while
the costs of CDs have remained comparatively high.
The major focus of the PSA report [158] was
sound recordings made up of cassette tapes, which in 1989 made up 56%
of the market compared to 29% for CDs. In 1998 CDs make up 94% of the
market [159]. This is significant as the PSA
report [160] concluded Australia remained
towards the top of the price range for sound recordings, except in the
case of CDs.
Following the release of the PSA report there was strident discussion
about the CD price issue [161] suggesting
considerable disagreement about the analysis and findings of the PSA report
by economists on all sides of the argument.
The Government looks to the PSA report recommendations to support its
contention that sound recording prices are high [162].
I am of the view that this contention is flawed [163].
I am concerned that:
(i) there was data in the PSA report showing in 1989 that sales of
sound recordings comprised mostly cassette tapes (56%), with CDs (29%)
and LPs (15%), but there was a failure to present data showing that
sales of sound recordings now comprise CDs (94% [164]),
cassette tapes and LPs (6%), which is a significantly different mix;
(iii) Attachment 1 refers to sound recordings which includes CDs, cassette
tapes, LPs in 1989 and Attachment 2 refers only to cassette tapes, failing
to take into consideration the change in mix since 1989;
(iv) there was a failure to consider the data in the PSA report at
Appendix J comparing CD prices across nations which showed Australian
CD prices were below Canada, France, Germany, UK and Holland and higher
than the US and New Zealand, the price difference between Australia
and Germany (on 26 November 1990) was approximately 17%, the price difference
between Australia and the US (on 26 November 1990) was approximately
20% and there was clear statement by the PSA report that these price
differentials for CDs were much closer than the other forms of sound
recordings;
(v) Attachment 2 deals with cassette tapes in 1989 and not CD
prices, and so it is incorrect to claim that “CD prices were 42%
higher than the US and 56% higher than in West Germany” based on
Attachment 2, and the 1989 CD data in Appendix J of the PSA report and
the changed mix of Cassette tapes, LPs and CDs since 1990 shows this
comparison is incorrect;
(vi) Attachment 3 shows CD prices in December 1990 in the US as approximately
$21 and in Australia as approximately $26 (comparable Australian dollars),
while the CD price comparison in Appendix J of the PSA report shows
CD prices for 26 November 1990 in the US as approximately $12 and in
Australia as approximately $15 (assumed to be US dollars), and Attachment
5 shows exchange rates for between 0.75 and .080, which would provide
conversions of the Appendix J (26 November 1990) data to Australian
dollar equivalents of US CDs between $16 and $15 (12/0.75 and 12/0.80)
and Australian CDs between $20 and $18.75 (15/0.75 and 15/0.80), although
this is a price difference of 20% which is consistent; and
(vi) Attachment 4 shows Australian CD prices in December 1990 to be
approximately $26 (which is consistent with the Australian price in
Attachment 3) and the UK price to be approximately $24, while the Appendix
J (26 November 1990) data shows the UK price to be approximately $19
(assumed to be US dollars) compared to the Australian price of approximately
$15 (assumed to be in US dollars), and there is no explanation
for this higher Australian price than UK price in Attachment
4 and the lower Australian price than the UK price in Appendix
J.
The Australian Record Industry Association [165]
showed price comparisons for CDs in October 1990, which were consistent
with the PSA report Appendix J data for 31 October 1990, and the conclusion
of the PSA report [166] that Australian prices
were in line with most other countries. The Australian Record Industry
Association [167] also present price data
from April 1996 for “full priced” CDs showing the US price in
Australian dollars as approximately $15 and an Australian price in Australian
dollars as approximately $19 while the Australian Competition and Consumer
Commission [168] show CD prices in Australian
dollars “with Australian tax” in the US as approximately $20
and Australian as approximately $28. The Australian Record Industry Association
data shows an approximate 21% ((19-15)/19x100) difference while the Australian
Competition and Consumer Commission data shows an approximate 28% ((28-20)/28x100)
difference. It is unclear why this data is different and further the Australian
Record Industry Association data shows Australian prices are mid-range
when compared to many other countries.
The Australian Consumers' Association [169]
presented data showing price comparisons in early 1998. This data was
significant in that compared to the Australian Record Industry Association
[170] data prices were generally higher (for
example, April 1996 US prices in Australian dollars was approximately
$15 compared to $21.61), while a number of countries were considerably
lower (for example, Indonesia $8.03, India $16.71, Korea $12.64, Singapore
$12.91 and Taiwan $12.47).
The Australian Consumers' Association [171]
presented data showing considerable CD price variation within the Australia
market - for example, the Spice Girls Spiceworld could be purchased at
Brash's Miranda for $19.95, while the same sound recording at Sanity Roselands
was $29.95! Ron Bewley provided an explanation for this phenomenon, saying:
“That Sanity does not discount its CDs but Brash's discount the
Top 40 by $5 shows that consumers do not readily substitute one CD for
an identical one elsewhere: otherwise Sanity would be out of business
rather than the fastest growing chain in the country.”
Other submissions alluded to different data sets (for example, Australian
Record Industry Association [172] presented
data for “full priced” CDs and the Australian Competition and
Consumer Commission [173] presented data for
“popular CDs”) and I have concluded these different data sets
reflect the differences I have identified.
The differences between the data sets cloud any conclusions about the
possible price differences Australian consumers might expect from the
removal of parallel import restrictions. Price drops of up to $7 [174]
seem unlikely or insignificant when data sets presented to the Committee
show price differences in different locations in Australia for the same
product making up to $10 [175]. The statement
by the Australian Record Industry Association [176]
is significant: “Record companies do not control, set or recommend
retail prices”, because there is no guarantee that retail prices
would be reduced or quickly return to their present levels. The Australian
Competition and Consumer Commission [177]
suggested the wholesale/retail margin was up to $13.65 and that “The
huge margins available to wholesalers and to record companies suggests
there is ample scope for retailers of all sizes and types to drive prices
down once deregulation takes place”.
The UK Monopolies and Mergers Commission [178]
finding are significant to this debate in Australia:
“We commissioned our own survey of comparative UK/US prices and
found that the real price differentials were considerably lower than
is often supposed...price differentials for CDs are not the result of
circumstances specific to the record industry”.
The materials and data presented to this Committee are consistent with
this conclusion. I therefore accept that there is likely to be a price
difference on some sound recordings between Australia and the US. However,
I remain unconvinced that this price difference is directly related to
the parallel import restrictions in the Act or significant across all
sound recordings [179].
This conclusion suggests that factors were affecting price other than
parallel importation rights [180]. Ron Bewley
[181] presented evidence to the Committee
showing price comparisons between Australia and the US across a range
of products, and showed Australian products were approximately 30 to 65%
more expensive, unless there was a particular cultural practice (in Australians
tea drinking is popular compared to the US, an so tea in Australia is
cheaper). Therefore, factors other than parallel import restrictions are
probably involved in the higher prices in Australia compared to the US.
This same conclusion is supported by data presented by Ron Bewley [182],
the Australian Competition and Consumer Commission [183]
and the Australian Record Industry Association [184],
etc.. It is notable that the Prices Surveillance Authority has undertaken
a number of other studies of “high priced” industries which
are not subject to parallel importing restrictions [185].
The Australian Competition and Consumer Commission [186]
suggested there was price discrimination and that increased competition
would reduce prices and that present prices were the result of monopoly
rents. Ron Bewley [187] provided an analysis
of the concentration of some Australian industries which showed the music
industry in Australia is not as concentrated as other industries, some
of which (for example, cinema, tea and toothpaste) have been considered
to be sufficiently competitive [188]. From
this analysis it is unclear whether more competition is necessary or possible.
However, the arguments and data presented to the Committee suggest the
Australian price of sound recording may be subject to significant price
differences and other restrictive trade practices which could be detrimental
to Australian consumers. Section 51(3) of the Trade Practices Act
1974 make intellectual property rights subject to review by the Australian
Competition and Consumer Commission. However, there seems little likelihood
that Part IV of the Trade Practices Act 1974 (restrictive trade
practices) will be attracted because the copyright owner is unlikely to
have the market or market power to attract section 46 [189].
With the market share of the so-called multinationals [190]
at significantly high levels the existing provisions of the Trade Practices
Act 1974 may need to be reviewed to make sure restrictive trade practices
are not undertaken in the Australian music industry. These measures are
necessary to ensure the balance between adequate copyright protection
does not extract excessive monopoly rents from Australian consumers [191].
Australian dollar values
Fluctuations in the value of the Australian dollar will affect the prices
of CDs [192]. However, the Australian Democrats
accept that the value of the Australian dollar is unlikely to remain under
or over values for long periods of time because of the volume of international
trade. Periodic distortions should not be the determining factor in this
debate, but rather the long term comparisons. In my deliberations I have
taken the longer term effects of dollar values into consideration.
Choice and availability of CDs
The Act presently allows individuals to import sound recordings for their
own use (section 102 of the Act). This has significant implications for
the purchase by Australians of sound recordings for their own use from
other nations. This may currently be done by telephone ordering, by mail
order, by lodging an order over the Internet, etc.. Evolving technology
will provide consumers with considerable power to choose sound recordings
from a range of sources both within and outside Australia. This should
address most of the concerns expressed to the Committee about access and
availability of sound recordings [193]. There
does not seem to be problems of access and availability of Australian
artists' sound recording from the local market.
The submission from Christopher Lyndon Gee [194]
was significant in that it reinforces the commercial reality that not
every title ever made will be stocked in local stores or readily available
without some searching. Evolving technology should make the location and
sourcing of sound recordings easier. If barriers are presented to the
import of the sound recording by the copyright owner, there may need to
be further assessment of measures to ensure availability. This issue was
addressed for books by inserting sections 44A and 112A into the Act [195].
Multinational profits
The Australian Competition and Consumer Commission [196]
referred to the findings of the PSA report [197]
of “exceptionally high” company profits of an average return
to shareholders' funds of 55.2% in 1989 compared to a company average
of 10.9% that year. The Australian Bureau of Statistics [198]
figures found operating profits before tax for record companies as a percentage
of total income was 6.1% [199]. If monopoly
profits are being taken then the evidence before the Committee has not
established this to be the case.
Australian culture
The Australian Democrats believe the Australian music industry makes
a significant and valuable contribution to our unique culture. Increasing
globalisation and the predominance of entertainment by the wealthiest
nations is impacting directly on our unique culture. These effects must
be ameliorated through the promotion of Australian culture, including
the Australian music industry. The use of opaque mechanisms, such as parallel
import restrictions in the Act, to support and promote Australian culture
may not be satisfactory [200].
Other forms of direct industry assistance may be necessary. This might
include assistance targeted to artists, music types, etc. which have a
particular need for assistance [201]. The
Australian Record Industry Association [202]
reported the detrimental impact of decreased airplay of new release Australian
music as a concern for the Australian music industry [203].
The Australian Democrats believe that a review of the Australian content
requirements should be undertaken with the possible introduction of recent
release Australian music content requirements. We are concerned the contraction
of radio station ownership and the move to syndicated formats will adversely
affect the Australian music industry. A range of assistance alternatives
should also be examined.
Further, the impacts of technology are likely to dramatically alter the
existing structures in the Australian music industry (discussed above).
It is therefore necessary to consider the possible futures and take actions
now to assist Australian music to deal with the changes. Assistance needs
to be considered to place the Australian music industry into a position
to take advantage of the future technological changes [204].
Piracy
The Australian Democrats accept that piracy is detrimental to the exclusive
rights and other rights attached to copyright works and subject matter,
and that measures need to address piracy are a valid concern for a copyright
owner. The issue before the Committee was the level of “sound recording”
piracy and the relevance of parallel import restrictions on reducing piracy.
The views on this issue were divergent [205].
The Attorney General's Department [206] cited
the low levels of piracy from 1978 showing Australia had 2-3% and suggested
the present levels of piracy in Australia under a parallel import regime
were approximately 3-4%. Singapore was cited as an example of a country
which permitted parallel imports and where piracy had increased, although
the increase was not quantified. This submission is significant in that
it does not exclude the possibility of piracy, but rather suggests market
conditions, increased penalties/civil actions and global trends will “counter”
piracy. Figures were then presented [207]
which show territorial piracy over 10% in the majority of countries in
the Middle East, Asia, Africa and Latin America. The US Embassy [208]
also suggested the capacity for pirated material from East Asia was considerable.
The rapidly advancing technology which allows sound recordings to be
stored and reproduced means that copying is likely to become easier and
more difficult to detect [209]. This is a
significant concern for the copyright owner. Further, the bundle of rights
that is copyright are not the same as a traded good making the issue of
piracy for sound recordings a significant problem for detection which
cannot rely on our existing border controls. The Australian Democrats
support measures directed at reducing piracy and in particular electronic
piracy.
However, this concern must be weighed against the extent of Australian
artists' sound recordings likely to be affected by piracy. The specific
market conditions, the Bill's increased piracy measures and the global
actions to reduce piracy [210] are not sufficient,
in my opinion, to ensure Australian artists' copyrights are protected.
The existing delicate balance relied on by Australian artists to reap
the rewards of their copyright are jeopardised by piracy. The impacts
of technology are likely to significantly affect the piracy of sound recordings,
and strategies must be developed to deal with these technological and
future changes. Increasing penalties is one alternative, but others must
be examined, including the development of industry standards, watermarking,
etc. [211]. I am also concerned by the possible
under-funding of the Australian Customs Service [212],
and believe that our border controls must be reviewed and adequately funded
to meet their present and future work requirements.
Royalties
Royalties are the only financial return to Australian artists for their
sound recordings. Therefore, the effect of the proposed changes to the
parallel import restrictions on royalties is a significant issue for the
Australian Democrats. This was also an issue of considerable importance
to the artists as well, and this was reflected by the considerable number
of submissions received addressing this issue [213].
The royalty arrangements around the world differ and the means of collection
impact directly on the artists. Without more detailed protections built
into the royalty rates and the mechanisms of collection we are reluctant
to support any changes likely to delay or reduce the royalty payments
to Australian artists. The Government concedes that the “Income of
sound recording companies and composers may be adversely affected if consumers
choose to purchase imported versions or recordings rather than local releases”
[214].
I am concerned that even though the majority of Australian artists (including
composers) record, manufacture and sell their music in Australia, the
removal of parallel import restrictions will open the way for their music
to be taken offshore and imported back into Australia undermining their
royalty flows. The PSA report [215] showed
as a percentage of net sales royalties in 1989 accounted for approximately
24% and the Australian Consumers' Association [216]
showed royalties as a proportion of the cost of a CD in 1997 to be 24%.
This is a significant proportion of the value of a sale and likely to
provide considerable costs benefits if the royalty payment can be avoided.
It is clear that royalties are not payable in some countries [217],
are difficult to collect in other countries [218]
and subject to different periods of protection [219].
Jobs
The impact of the Bill on Australian jobs remains unclear. The Australian
Record Industry Association [220] presented
data suggesting the music industry accounted for 50,000 jobs which could
be affected by the Bill. The Australian Bureau of Statistics [221]
identified 3,886 jobs in the music industry. These latter figures include
record companies (2,324), manufacturers of recorded music (493), music
publishers (269) and sound recording studios (800), but does not include
rehearsal studios, freelance sound recording services, the music video
business, concert promoters, venue operators, booking agents, broadcasters,
retailers, performers, composers, songwriters and other related businesses.
The level of employment remains unclear [222],
although it is clear a range of (small) businesses [223]
and related industries will be affected [224],
as well as the artists through their reliance on royalties [225].
The future prospects of employment in the Australian music industry will
be affected by technological developments. The loss and creation of jobs
are likely with small retail businesses severely squeezed by online purchasing
and services. Further, the Government concedes “Local manufacturers
may have reduced profits if record companies choose to source product
from cheaper suppliers overseas” [226].
To counter these arguments, it was also contended that with reduced CD
prices jobs in some sectors would increase [227].
The Australian Music Publishers' Association and Australasian Mechanical
Copyright Owners' Society [228] argued that
the PSA report [229] (and hence the Australian
Competition and Consumer Commission submission) had used the inelasticity
of demand to explain how record companies charged high prices for sound
recordings and that it would be contradictory to now argue that a boom
in CD sales would result in increased job opportunities. John Quiggin
[230] argued there were no “reliable”
studies and suggested the existence of substitutes for sound recordings
implied there was some elasticity (and in his view decreased price would
increase sales). The disputes about elasticity indicate the effect of
price reductions has no guarantee of sustaining or increasing employment
in the Australian music industry.
Taxation
The impact of taxation on prices will not be resolved without a reconsideration
of the taxation scheme applying in Australia.
Transitional provisions
The introduction of this legislation is likely to affect a number of
Australians and alter commercial arrangements (such as contractual agreements
between artists and record companies). It seems significant that there
are no transitional provisions. This was a recommendation of the PSA report
[231] and the suggestions there appear reasonable.
Onus of proof
The evidence before the Committee raises considerable doubt as to whether
the measures proposed by the Government [232]
to reverse the onus of proof will achieve its desired ends [233].
The Australian Democrats are always reluctant to reverse the onus of proof.
There is no doubt the Parliament may legislate within its powers in both
civil and criminal matters [234], although
this is a “drastic” measure and may eventually turn to invalidity
because there will cease to be sufficient connection with the constitutional
head of power [235].
The Australian Democrats support strong measures to limit piracy. However,
we would question whether this provision, even given its reversal of the
onus, would assist in the prosecution of piracy. The plaintiff will still
be required to make a case and will be open to significant penalty for
the slightest evidence from the defendant. This does not appear to assist
possible plaintiffs.
Censorship
While the Australian Democrats do not advocate the importation and distribution
of objectionable material, we accept the Government assurances that sufficient
controls exist under Commonwealth and State laws to limit the importation
and distribution of objectionable materials. The Australian Democrats
have advocated ongoing debate about issues of access and availability
to adult materials, together with issues of defamation, vilification,
privacy and a range of other consumer and community concerns [236].
Other countries
The Sydney Morning Herald [237] reported
that the Labor Government had a leaked document from the Department of
Foreign Affairs and Trade which showed that similar parallel import relaxation
in Norway, which has a comparable market to Australia, did not benefit
consumers. The report says parallel import relaxation had discouraged
investment in local artists, reduced consumer choice and made piracy easier.
In the early 1990s the Norwegian government removed the restrictions on
the parallel imports of CDs, but soon changed back. The Australian [238]
newspaper later reported that the Government has received advice from
Norway that it may return to removing parallel import restrictions, although
this has not happened [239]. It is understood
New Zealand is also considering the same changes, although “there
is no firm commitment to change at this stage” [240].
The experiences of these different countries are quoted for and against
this Bill. For example, Christopher Pyne [241]
suggests the Norwegian example acknowledges the need for change, while
Smund Fiskvik [242] cites Norway as the proof
that prices will not rise, the local industry will decline and piracy
will increase. It is notable that the European Union maintains restrictive
parallel imports across the common border [243].
Therefore, these examples do not add to the present deliberations other
than to confirm the solutions to this issue are no obvious and the answers
not simple.
Concluding remarks
This has been a difficult issue for me to examine. I am very concerned
that the evolving technology will render the deliberations in this report
of limited value in the very near future. The arguments presented by all
parties were strongly held and based on concerns for our future. I share
these concerns and believe that the Bill in its present form will not,
on balance, achieve the aims set out by the Government. The impact on
Australian artists of possible royalty reductions, piracy and job losses
are significant. However, artists and those employed in the Australian
music industry need to re-assess their industry in light of the evolving
technology to deal with substantial changes. I believe these advances
will impose change and reform on this
industry. The imposed reforms are not distant and the industry at every
level must address these reforms. The Government has a role in assisting
this change and I hope there will be a positive and collaborative move
to make Australian music, as a key element of our distinct and unique
culture, a success for the future.
Natasha Stott Despoja
Senator for South Australia
March 1998
Footnotes
[1] Australian Competition and Consumer Commission,
Submission 159, at page 3.
[2] Prices Surveillance Authority, Report No
35, 13 December 1990, at page 31.
[3] International Trade Strategies, Submission
102, at pages 3-4.
[4] Price Waterhouse Economic Studies and Strategies
Unit, The Australian Music Industry - An economic profile, April
1993.
[5] Australian Bureau of Statistics, Business
of Music, Publication No. 4142.0, Canberra, 1996.
[6] Australian Record Industry Association,
Submission 153, at page 32.
[7] see A Gilfillan, Submission 130, at page
3.
[8] Time Off, Submission 129, at page 1.
[9] Entertainment Industry Employers' Association,
Submission 143, at page 2.
[10] Australian Consumers' Association, Submission
166A, at page 27.
[11] for example, Southern Star, Submission
173, at pages 1-3.
[12] for example, Mushroom Music Pty Ltd, Submission
148, at page 1.
[13] for example, Roadrunner, Submission 128,
at page 2.
[14] Australian Competition and Consumer Commission,
Submission 159, at page 12.
[15] Australian Competition and Consumer Commission,
Submission 159, at page 4.
[16] Australian Bureau of Statistics, Business
of Music, Publication No. 4142.0, Canberra, 1996 at page 5.
[17] see Australian Record Industry Association,
Submission 153, at page 33.
[18] Australian Record Industry Association,
Submission 153, at page 8.
[19] Country Music Association of Australia,
Submission 48, at page 9.
[20] Australian Bureau of Statistics, Business
of Music, Publication No. 4142.0, Canberra, 1996 at Table 5 and pages
6-7.
[21] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 160.
[22] Copyright Amendment Bill (No 2)
1997, Explanatory Memorandum, at page 13.
[23] Southern Cross, Submission 173, at page
4.
[24] Australian Record Industry Association,
Submission 153, at page 7; see also Technical Administrative Professional
Staff, Submission 67, at page 5.
[25] see for example Australian Record Industry
Association, Submission 153, at page 8; similar submissions were made
to the Prices Surveillance Authority, Report No 35, 13 December 1990,
at page 166.
[26] see Prices Surveillance Authority, Report
No 35, 13 December 1990, at pages 88-93 and 166.
[27] Australian Consumers' Association, Submission
166A, at page 28.
[28] Australian Record Industry Association,
Submission 153, at page 8.
[29] Prices Surveillance Authority, Report
No 35, 13 December 1990, at pages 49-56.
[30] the multinationals Thorn-EMI, Sony Corporation,
Time-Warner Inc., Bertelmann Music Group (BMG) and NV Philips and the
local company Festival Records Pty Ltd.
[31] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 51.
[32] Australian Consumers' Association, Submission
166A, at page 7.
[33] Australian Competition and Consumer Commission,
Submission 159, at page 6.
[34] International Trade Strategies, Submission
102, at page 2.
[35] Australian Music Publishers' Association
and Australasian Mechanical Copyright Owners' Society, Submission 147,
at page 12.
[36] Australian Music Retailers Association,
Submission 150, at page 4.
[37] Australian Record Industry Association,
Submission 153, at page 9.
[38] Shock Records Pty Ltd, Submission 90,
at page 6.
[39] Shock Records Pty Ltd, Submission 90,
at pages 4-5.
[40] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 165.
[41] see Country Music Association of Australia,
Submission 48, at page 3; composers/authors and songwriters - M
Irik, Submission 1, at page 3; A Bressanelli, Submission 3, at page 1;
H Sea, Submission 4, at page 1; T Gaze, Submission 6, at pages 1-2; P
Pompor, Submission 7, at pages 1-2; Moonlight Cactus Music, Submission
8, at page 1; W Porter, Submission 9, at page 1; N Buitenhuis, Submission
10, at page 1; D Ashdown, Submission 11, at page 1; C Hodson, Submission
12, at page 1; T Hall, Submission 13, at page 1; P Brady, Submission 14,
at page 1; P Donovan, Submission 15, at page 1; P Fitz-Patrick, Submission
16, at page 1; W Moeller, Submission 17, at pages 1-2; A Thompson, Submission
18, at page 1; Screamfeeder, Submission 19, at pages 1-2; E Hargreaves,
Submission 21, at pages 1-2; G Rodger, Submission 22, at page 1; J Fielding,
Submission 23, at page 1; A Adair, Submission 24, at page 1; A Tomlin,
Submission 25, at page 1; A Wilson, Submission 26, at page 1; R Dryden,
Submission 27, at page 1; J Harris, Submission 28, at page 1; L Macpherson,
Submission 30, at pages 1-2; R Bulpin, Submission 33, at pages 1-2; N
Roberston, Submission 35, at pages 1-3; M Hyde, Submission 36, at page
1; G Shearston, Submission 37, at pages 1-2; K Auldist, Submission 40,
at page 1; J Aschmann, Submission 41, at pages 1-2; P Borradaile, Submission
42, at page 1; C Young, Submission 43, at page 1; W Menz, Submission 44,
at page 1; M Gowen, Submission 45, at page 1; A Wrenn, Submission 46,
at page 1; D Eadie, Submission 51, at page 1; J Ley, Submission 52, at
page 1; P Campbell, Submission 53, at pages 1-2; E Hughes, Submission
54, at page 1; A Ghita Prey, Submission 55, at page 1; D Veall, Submission
56, at pages 1-2; K Francis, Submission 57, at page 1; T Johnson, Submission
58, at page 1; R Kimberley, Submission 59, at page 1; K McKenzie, Submission
61, at page 1; S Foster, Submission 62, at pages 1-3; C Coulouris and
M Azzopardi, Submission 63, at page 1; R Stagg, Submission 64, at pages
1-2; V Prtenjaca, Submission 65, at pages 1-2; J Watson, Submission 69,
at pages 1-2; R Edwards, Submission 70, at page 1; F Honeyman, Submission
71, at page 1; S Meyers, Submission 72, at page 1; S Hampsey, Submission
73, at page 1; P Harvey, Submission 74, at page 1; K Lloyd, Submission
75, at page 1; C Shine, Submission 76, at page 1; B White, Submission
77, at pages 1-2; K Hunt, Submission 80, at page 1; J Litchfield, Submission
85, at pages 1-2; M Thomas, Submission 86, at page 1; G Hamilton, Submission
88, at pages 1-3; O Waters, Submission 91, at page 1; R Saunders, Submission
92, at page 1; J Cope, Submission 93, at page 1; S Harris, Submission
94, at page 1; P McGowan, Submission 95, at page 1; M Hart, Submission
97, at page 1; B Hart, Submission 98, at page 1; N Downey, Submission
99, at page 1; B Mackney, Submission 100, at page 1; C Newsome, Submission
103, at page 1; S Bester, Submission 104, at page 1; G Smith, Submission
105, at pages 2-4; S Barnes, Submission 109, at pages 1-3; L O'Neill,
Submission 111, at page 1; R Wilson, Submission 113, at pages 1-2; J Campano,
Submission 115, at pages 1-2; D Johnson, Submission 118, at page 1; P
Guazzelli, Submission 121, at pages 1-2; Society of Australian Songwriters,
Submission 131, at pages 1-2; The Love Dogs, Submission 132, at pages
1-2; E McCusker, Submission 133, at page 2; S Mancuso, Submission 134,
at pages 1-2; R Carpenter, Submission 135, at pages 2-3; C Lewis, Submission
136, at page 1; S McGlaughlin, Submission 139, at page 1; P Farnan, Submission
146, at pages 1, 6-9 and 12; B McMullen, Submission 155, at page 1; D
Sciacca, Submission 156, at page 1; Floodboy, Submission 157, at page
1; M Szabo, Submission 161, at page 1; M Woodward, Submission 162, at
page 1; Tamworth Songwriters' Association Inc., Submission 163, at pages
1-2 - small companies - Streetwise Music Australia Pty Ltd, Submission
20, at pages 1-2; London Music Group, Submission 34, at page 1; R Jeans,
Submission 68, at pages 1-2; P Cussen, Submission 112, at page 1; Larrikin
Music Publishing Pty Ltd, Submission 117, at page 2; Dryden Music, Submission
22, at page 1; Roadrunner Records, Submission 128, at page 1; Rajon Entertainment
Pty Ltd, Submission 140, at pages 1-2 - music publishers - Boosey
& Hawkes, Submission 47, at pages 1-2; Rondor Music (Australia) Pty
Ltd, Submission 78, at pages 1-2; MCA Music Publishing, Submission 89,
at pages 1-2; Warner/Chappell Music Australia Pty Ltd, Submission 106,
at pages 1-2; Caama Music, Submission 110, at pages 1-2 - others
- P Maxian, Submission 87, at page 1; M Lass, Submission 101, at pages
1-7; Songlines Music Aboriginal Corporation, Submission 119, at page 1;
Australian Songwriters Association Inc., Submission 137, at page 1; Mushroom
Music Pty Ltd, Submission 148, at pages 2-3.
[42] Australian Consumers' Association, Submission
166A, at page 45.
[43] for example, Shock Records Pty Ltd has
a turnover of $30, 000,000 in 1996/97 and has invested $5,000,000 in Australian
artists in the last 3 years: Shock Records Pty Ltd, Submission 90, at
page 1.
[44] Australian Bureau of Statistics, Business
of Music, Publication No. 4142.0, Canberra, 1996; see also Australian
Consumers' Association, Submission 166A, at page 16.
[45] Country Music Association of Australia,
Submission 48, at page 1
[46] Australian Bureau of Statistics, Business
of Music, Publication No. 4142.0, Canberra, 1996.
[47] South Australian Music Industry Association,
Submission 181, at page 3.
[48] Australian Music Publishers' Association
and Australasian Mechanical Copyright Owners' Society, Submission 147,
at page 11.
[49] Media Entertainment and Arts Alliance,
Submission 170, at page 9.
[50] Shock Records Pty Ltd, Submission 90,
at pages 3-4.
[51] Australian Music Retailers Association,
Submission 150, at page 4.
[52] J Albert and Sons Pty Ltd/Albert Productions,
Submission 82, at page 2.
[53] J Albert and Sons Pty Ltd/Albert Productions,
Submission 82, at page 2; Australian Music Publishers' Association and
Australasian Mechanical Copyright Owners' Society, Submission 147, at
page 27; International Managers Forum (Australia) Ltd, Submission 171,
at page 8.
[54] International Managers Forum (Australia)
Ltd, Submission 171, at page 8.
[55] A Capling, Submission 168, at page 3.
[56] Australian Consumers' Association, Submission
166A, at page 16; see also page 19.
[57] C Pyne, Submission 177, at page 1.
[58] J Quiggin, Submission 175, at page 6.
[59] Media Entertainment and Arts Alliance,
Submission 170, at pages 11-12.
[60] Australian Music Publishers' Association
and Australasian Mechanical Copyright Owners' Society, Submission 147,
at page 12.
[61] The Country Music Association of Australia
stated: “Perhaps the industry's loudest complaint in recent years
has been the low level of Australian music content - particularly by emerging
artists, on mainstream radio”, Country Music Association of Australia,
Submission 48, at page 13; A Capling, Submission 168, at page 11 noted
that Australia and Canada have local content rules, but these sorts of
provisions may attract the scrutiny by the World Trade Organisation as
a result of the new General Agreement on Trade in Services; local content
rules reviewed in Prices Surveillance Authority, Report No 35, 13 December
1990, at pages 42-44; see also South Australian Music Industry Association,
Submission 181, at page 3; Musicians' Union of Australia, Submission 182,
at page 3.
[62] Country Music Association of Australia,
Submission 48, at page 10.
[63] A Capling, Submission 168, at page 11.
[64] M Davison, Submission 81, at pages 1 and
3.
[65] Australian Record Industry Association,
Submission 153, at page 8.
[66] S Fiskvik, Annexe 1, 3 February 1998.
[67] S Fiskvik, Annexe 1, 3 February 1998.
[68] C Pyne, Submission 177, at page 6.
[69] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 38.
[70] Australian Record Industry Association,
Submission 153, at pages 2-3.
[71] Attorney General's Department, Submission
180, at page 6.
[72] Country Music Association of Australia,
Submission 48, at page 3; Australian Consumers' Association, Submission
166A, at page 7; M Davison, Submission 81, at page 4;
[73] Australian Consumers' Association, Submission
166A, at page 19.
[74] M Davison, Submission 81, at page 4.
[75] Australian Consumers' Association, Submission
166A, at page 38.
[76] Australian Record Industry Association,
Submission 153, at page 42.
[77] Country Music Association of Australia,
Submission 48, at page 21.
[78] discussed in Copyright Law Review Committee,
The importation provisions of the Copyright Act 1968, September
1988.
[79] similar concerns are relevant to the parallel
import restrictions for packaging and labelling which are also being considered
by the Senate: see Copyright Amendment Bill (No 1) 1997; Senate
Legal and Constitutional Legislation Committee, Copyright Amendment
Bill (No 1) 1997, October 1997.
[80] Australasian Performing Rights Association,
Submission 145, at page 5.
[81] Article 27, Universal Declaration of Human
Rights.
[82] P Drahos, A Philosophy of Intellectual
Property, Dartmouth, Aldershot, 1996, at page 119-144.
[83] see J Thorpe, Bringing the regulation
of collecting societies into the mainstream, Australian Intellectual
Property Law Teachers' Workshop, Australian National University, Canberra,
5 February 1998, at page 3.
[84] for a comprehensive review: Copyright
Law Review Committee, The importation provisions of the Copyright Act
1968, September 1988, at Appendix D.
[85] see Copyright Law Review Committee, The
importation provisions of the Copyright Act 1968, September 1988,
at Appendix D; M Blaneney and J McKeough, Intellectual Property,
Law Book Company, Sydney 1987, at page 11; Prices Surveillance Authority,
Report No 35, 13 December 1990, at page 20.
[86] Australian Record Industry Association,
Submission 153, at page 2.
[87] see for example, Industry Commission,
Research and Development, Report No. 44, 15 May 1995, AGPS, Canberra,
at page 185.
[88] see for example G Grossman and E Helpman,
Trade, innovation and growth, (1990) 80 American Economic Review,
at pages 86-91.
[89] see Australian Copyright Council, Submission
164A, at page 1.
[90] see Copyright Law Review Committee, The
importation provisions of the Copyright Act 1968, September 1988,
at page 10.
[91] see Copyright Law Review Committee, The
importation provisions of the Copyright Act 1968, September 1988,
at page 10.
[92] see Article 2 TRIPs.
[93] see Article 64 TRIPs.
[94] M Davison, Parallel importing of copyright
material in a digital age: why it should be lawful and why it may never
be, Federal Law Review, 1997, volume 25, at page 276; see also Australian
Consumers' Association, Submission 166A, at page 6; A Oxley, Committee
Hansard, 6 March 1998, at L&C 209; Attorney General's Department,
Submission 180, at pages 1 and 6.
[95] P Drahos, Global property rights in
information: the story of TRIPS at the GATT, Prometheus, 1995, volume
13, at pages6-19; see also A Capling, Submission 168, at pages 6 and 9.
[96] for complete rejection see Australian
Consumers' Association, Submission 166A, at page 44 ; see generally J
Waldron, From authors to copiers: individual rights and social values
in intellectual property, (1993) 68 Chicargo-Kent Law Review.
[97] F Macmillan, Copyright, culture and
private power, Australian Intellectual Property Law Teachers' Workshop,
Australian National University, Canberra, 5 February 1998, at page 4.
[98] see Attorney General's Department, Stopping
the rip-offs: intellectual property protection for Aborigine and Torres
Strait Island peoples, AGPS, Canberra, 1994.
[99] J Waldron, From authors to copiers:
individual rights and social values in intellectual property, (1993)
68 Chicargo-Kent Law Review.
[100] see Senate Legal and Constitutional
Legislation Committee, Copyright Amendment Bill 1997, October 1997;
Department of Communications and the Arts, Discussion Paper, Performer's
intellectual property rights: scope of extended rights for performers
under the Copyright Act 1968, December 1997.
[101] see Australian Record Industry Association,
Submission 153, at page 19 state the Australian market as Sony (24%),
EMI (20%), PolyGram (17%), Warner (16%) and the remaining market dominated
by Festival Records, Mushroom Records and Shock Records.
[102] Australian Consumers' Association, Submission
166A, at page 7 state the leading five companies in order of global share
are PolyGram (19%), Time Warner (18%), Sony (17%), EMI (15%) and BMG (13%),
with combined sales making up 80-90% of the global market.
[103] see A Capling, Gimme shelter!,
Arena Magazine, February/March 1996, at page 21.
[104] Australian Bureau of Statistics, Business
of Music, Catalogue No. 4143.0, Canberra, 1996 at Tables 1 and 5.
[105] although this analysis was disputed
by the Australian Music Publishers' Association Limited and the Australian
Mechanical Copyright Owners' Society, Submission 147.
[106] Australasian Performing Rights Association,
Committee Hansard, 4 February 1998, at L&C 62.
[107] Australian Record Industry Association,
Submission 153, at page 13.
[108] Australian Bureau of Statistics, Business
of Music, Catalogue No. 4143.0, Canberra, 1996 at Table 6.
[109] A Capling, Submission 168, at page 11
see also International Trade Strategies, Submission 102, at page 2; Australian
Competition and Consumer Commission, Submission 159A, at page 8.
[110] for an alternative view see K Henderson,
Copyright, parallel imports and development (1992) 10 Copyright
Reporter, at page 17.
[111] J Quiggin, Submission 175, at page 6.
[112] see for example, singer –
K Auldist, Submission 40, at pages 1-2 ; composer – J Aschmann,
Submission 41, at pages 1-2.
[113] see for example, Shock Records Pty Ltd,
Submission 90, at pages 3-6.
[114] see for example, Southern Star, Submission
173, at pages 1-2.
[115] see for example, Australian Music Retailers
Association, Submission150, at page 2; South Australian Music Industry
Association, Submission 181, at pages 1-4; the Australian Consumer and
Competition Commission, Submission 159A, at pages 4-5 suggest small retailers
might match prices through “buying groups” and reliance on non-price
advantages such as location and customer service.
[116] Copyright Amendment Bill (No 2)
1997, Explanatory Memorandum, at pages 4 and 7.
[117] see Music Industry Piracy Investigations,
Submissions 142 and 142A, at pages 1 and 1 respectively.
[118] Copyright Amendment Bill (No 2)
1997, Explanatory Memorandum, at page 2.
[119] Australian Customs Service, Committee
Hansard, 12 March 1998, at L&C 241.
[120] see Music Industry Piracy Investigations,
Submissions 142 and 142A, at pages 1 and 1 respectively.
[121] contrast Australian Record Industry
Association, Submission 153, at page 1 and Australian Competition and
Consumer Commission, Submission 159, at page 2.
[122] see Australian Copyright Council, Submission
164, at pages 6-7.
[123] see Organisation for Economic Cooperation
and Development, Basic science and technology statistics, Paris,
1993.
[124] Prices Surveillance Authority, Report
No 49, 23 August 1993, at page 141; Bureau of Industry Economics, The
Economics of patents, Occasional Paper 18, 1994, at p 47
[125] see Australian Consumers' Association,
Submission 166A, at pages 7-8; A Capling, Gimme shelter!, Arena
Magazine, March 1996, at page 23.
[126] Australian Record Industry Association,
Submission 153, at page 18.
[127] UK Monopolies and Mergers Commission,
The supply of recorded music, London, 14 April 1994, at page 3.
[128] see for example, Attorney General's
Department, Submission 180, at pages 4-6; counter arguments were presented
by Australian Record Industry Association, Submission 153A, at page 3.
[129] see N Stott Despoja, Electronic Age,
Hansard, 23 September 1997, at page 6780; N Stott Despoja, Predictive
DNA testing, Hansard, 20 October 1997, at page 7656; N Stott Despoja,
Genetic privacy and non-discrimination, Hansard, 11 November 1997,
at page 8816; note also L Thurow, Needed: a new system of intellectual
property rights (1997) 75 Harvard Business Review, at page 95;
[130] see N Stott Despoja, Electronic Age,
Hansard, 23 September 1997, at page 6780.
[131] see Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 22.
[132] see for example, Department of Communications
and the Arts, Discussion Paper, Performer's intellectual property rights:
scope of extended rights for performers under the Copyright Act 1968,
December 1997; Senate Legal and Constitutional Legislation Committee,
Copyright Amendment Bill 1997, October 1997; Attorney General's
Department, Discussion Paper, Copyright reform and the digital agenda,
July 1997; see also Media Entertainment and Arts Alliance, Submission
170.
[133] see for example, Australian Competition
and Consumer Commission, Submission 159, at page 2.
[134] Australasian Performing Rights Association,
Submission 145, at page 3; Australian Record Industry Association, Submission
153, at page 1.
[135] see Prices Surveillance Authority, Report
No 35, 13 December 1990, at pages ix.
[136] see Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 29.
[137] Rough Cut Music Pty Ltd, Submission
144, at page 2.
[138] for example see the facts in Bailey
v Boccaccio (1986) 77 ALR 177.
[139] see for example, Australian Consumers'
Association, Submission 166A, at pages 37-43.
[140] M Davison, Submission 81, at page 4.
[141] Australian Consumers' Association, Submission
166A, at page 6.
[142] N Stott Despoja, Electronic age,
Hansard, 23 September 1997, at page 8816; see also M Davison, Parallel
importing of copyright material in a digital age: why it should be lawful
and why it may never be, (1997) 25 Federal Law Review, at page 263.
[143] M Davison, Parallel importing of
copyright material in a digital age: why it should be lawful and why it
may never be, (1997) 25 Federal Law Review, at pages 272-280.
[144] M Davison, Parallel importing of
copyright material in a digital age: why it should be lawful and why it
may never be, (1997) 25 Federal Law Review, at page 273.
[145] see A Bowne, Trade marks and copyright
on the Internet (1997) 2 Media and Arts Law Review, at pages 142-143.
[146] see Australian Government Solicitor,
Copyright – into the digital age, Legal Briefing No 31, 10
March 1997; Department of Communications and the Arts, Discussion Paper,
Performer's intellectual property rights: scope of extended rights
for performers under the Copyright Act 1968, December 1997; etc..
[147] Attorney General's Department, Discussion
Paper, Copyright Reform and the Digital Agenda, July 1997.
[148] see A Bowne, Trade marks and copyright
on the Internet (1997) 2 Media and Arts Law Review, at pages 139.
[149] (1997) AIPC 91-344 per Kirby J.
[150] No. 96-1470. decided 9 March
1998.
[151] No. 96-1470. decided 9 March
1998.
[152] (1997) AIPC 91-344.
[153] although this issue is being considered
by the Government: Attorney General's Department, Discussion Paper, Copyright
Reform and the Digital Agenda, July 1997.
[154] Prices Surveillance Authority, Report
No 35, 13 December 1990, at pages 88-89.
[155] Prices Surveillance Authority, Report
No 35, 13 December 1990.
[156] Prices Surveillance Authority, Report
No 35, 13 December 1990 at page 78 lists product costs in 1989 at 12.6%
of retail price and the Australian Consumers' Association, Submission
166A, at page 30 lists product costs in 1997 at 14% of retail price; Prices
Surveillance Authority, Report No 35, 13 December 1990 at page 5 shows
approximately 9 million CDs sold in 1989 and Australian Record Industry
Association, Submission 153, at page 15 and Attachment 6 shows approximately
43 million CDs sold in 1996 – this is an approximate 500% increase
in CD sales while the production costs remained similar.
[157] Choice magazine, April 1990, at page
43.
[158] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 5.
[159] Australian Record Industry Association,
Submission 153, at page 15 and Attachment 6.
[160] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 86.
[161] see for example, T Parry, No road
to cheap records, Australian Financial Review, 10 September 1991;
A Fels, Australian record prices are top of the world charts, Australian
Financial Review, 13 September 1991; I McEwin, Let the good times roll,
Australian Financial Review, 16 September 1991; R Bewley, Unsound economics,
Australian Financial Review, 17 September 1991; T Parry, Record prices
not too high, Australian Financial Review, 17 September 1991; R Snape,
Record makers control prices, Australian Financial Review, 19 September
1991; R Byron, Smoke, heat, but no light, Australian Financial
Review, 20 September 1991; J Legge, Consumer benefit lacking, Australian
Financial Review, 25 September 1991; R Bewley, Debate stuck in a groove,
Australian Financial Review, 25 September 1991; A Fels, Facts on record
price statistics, Australian Financial Review, 4 October 1991; M Harris,
PSA right on recordings, Australian Financial Review, 7 October
1991; R Bewley, Misleading statement claimed on purchasing power parity,
Australian Financial Review, 17 October 1991; M Harris, Pointing out
a 'lousy' justification, Australian Financial Review, 17 October 1991;
see also R Bewley, Committee Hansard, Tuesday 3 February 1998, at L&C
22.
[162] Copyright Amendment Bill (No 2)
1997, Explanatory Memorandum, at page 2.
[163] see also Australian Competition and
Consumer Commission, Submission 159, at page 4.
[164] Australian Record Industry Association,
Submission 153, at page 15 and Attachment 6.
[165] Australian Record Industry Association,
Submission 153, at Attachment 4.
[166] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 86.
[167] Australian Record Industry Association,
Submission 153, at Attachment 4.
[168] Australian Competition and Consumer
Commission, Submission 159, at Attachment 3.
[169] Australian Consumers' Association, Submission
166A, at page 34.
[170] Australian Record Industry Association,
Submission 153, at Attachment 4
[171] Australian Consumers' Association, Submission
166A, at page 35.
[172] Australian Record Industry Association,
Submission 153, at Attachment 4.
[173] Australian Competition and Consumer
Commission, Submission 159A, at pages 5-6.
[174] see for example Australian Consumers'
Association, Submission 166A, at page 33.
[175] see Australian Consumers' Association,
Submission 166A, at page 35.
[176] Australian Record Industry Association,
Submission 153, at page 3.
[177] Australian Competition and Consumer
Commission, Submission 159A, at pages 6 and 7.
[178] UK Monopolies and Mergers Commission,
“The supply of recorded music”, London, 14 April 1994, at page
4.
[179] the dispute about the Woolworths Limited,
Submission 160, indicates there are considerable variations in prices
paid by retailers to wholesalers based on volume, seasons, etc.; see PolyGram
Pty Ltd, letter to Committee, 20 February 1998 and Sony Music Entertainment
(Australia) Limited, letter copied to Committee, 6 February 1998.
[180] see Australian Copyright Council, Submission
164, at page 3; R Bewley, Committee Hansard, Tuesday 3 February 1998,
at L&C 22.
[181] R Bewley, Committee Hansard, Tuesday
3 February 1998, at L&C 24.
[182] R Bewley, Committee Hansard, Tuesday
3 February 1998, at L&C 28 and 29.
[183] Australian Competition and Consumer
Commission, Submission 159, at Attachment 4.
[184] Australian Record Industry Association,
Submission 153, at Attachment 4.
[185] see for examples Prices Surveillance
Authority, Report No 35, 13 December 1990, at page 193 for a listing of
inquiry reports.
[186] Australian Competition and Consumer
Commission, Submission 159, at page 4.
[187] R Bewley, Submission 187, at page 2.
[188] R Bewley also note there were other
indicators of competition, such as barriers to entry, substitutability,
brand loyalty and choice: R Bewley, Submission 187, at page 3.
[189] see also Prices Surveillance Authority,
Report No 35, 13 December 1990, at page 165; Trade Practices Commission,
Application of the Trade Practices Act to Intellectual Property,
July 1991, at page 32; see also Copyright Law Review Committee, The
importation provisions of the Copyright Act 1968, September 1988,
at pages 44-63.
[190] see A Capling, Submission 168, at page
10 where it is claimed the “majors” hold 70% of the global music
market.
[191] see Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 39.
[192] N Stott Despoja, Press Release 97/888,
3 December 1997; see also International Managers Forum (Australia) Ltd,
Submission 171, at page 7; Australian Music Retailers Association, Submission
150, at page 6; Country Music Association of Australia, Submission 48,
at page 17; Australian Consumers' Association, Submission 166A, at page
29;
[193] see for example, Australian Consumers'
Association, Submission 166a, at page 13.
[194] C Lyndon-Gee, Submission126, at page
2; Committee Hansard, 3 February 1998, at pages L&C 49-51.
[195] Copyright Amendment Act 1991.
[196] Australian Competition and Consumer
Commission, Submission 159, at page 4.
[197] Prices Surveillance Authority, Report
No 35, 13 December 1990, at pages 120-130.
[198] Australian Bureau of Statistics, Business
of Music, Catalogue No. 4142.0, Canberra, 1996 at page 4.
[199] see Australian Record Industry Association,
Submission 153, at page 33.
[200] see Australian Competition and Consumer
Commission, Submission 159A, at page 12.
[201] note Prices Surveillance Authority,
Report No 35, 13 December 1990, at pages 44-46 for a review of direct
assistance to the Australian music industry.
[202] Australian Record Industry Association,
Submission 153, at page 15; see also South Australian Music Industry Association,
Submission 181, at page 3; Musicians' Union of Australia, Submission 182,
at page 3.
[203] note concerns in Prices Surveillance
Authority, Report No 35, 13 December 1990, at pages 43-44 about the quota
system.
[204] see Australian Consumers' Association,
Submission 166A, at pages 37-43.
[205] compare the Australian Competition and
Consumer Commission, Submission 159, at page 4 with the Music Industry
Piracy Investigations, Submission 142, at Annexure B.
[206] Attorney General's Department, Submission
180, at page 7.
[207] Attorney General's Department, Submission
180, at page 15.
[208] letter to the Committee from the US
Ambassador, US Embassy, 4 March 1998.
[209] see for example, V Rosenberg, Will
new information technology destroy copyright? (1994) 12 The Electronic
Library, at page 1.
[210] see Attorney General's Department, Submission
180, at page 1; Australian Consumers' Association, Submission 166A, at
pages 23-26.
[211] Attorney General's Department, Submission
180, at page 13.
[212] Australian Customs Service, Committee
Hansard, 12 March 1998, at L&C 242; Music Industry Piracy Investigations,
Submission 142B, at pages 1-3.
[213] composers/authors and songwriters
- M Irik, Submission 1, at page 3; A Bressanelli, Submission 3, at page
1; H Sea, Submission 4, at page 1; T Gaze, Submission 6, at pages 1-2;
P Pompor, Submission 7, at pages 1-2; Moonlight Cactus Music, Submission
8, at page 1; W Porter, Submission 9, at page 1; N Buitenhuis, Submission
10, at page 1; D Ashdown, Submission 11, at page 1; C Hodson, Submission
12, at page 1; T Hall, Submission 13, at page 1; P Brady, Submission 14,
at page 1; P Donovan, Submission 15, at page 1; P Fitz-Patrick, Submission
16, at page 1; W Moeller, Submission 17, at pages 1-2; A Thompson, Submission
18, at page 1; Screamfeeder, Submission 19, at pages 1-2; E Hargreaves,
Submission 21, at pages 1-2; G Rodger, Submission 22, at page 1; J Fielding,
Submission 23, at page 1; A Adair, Submission 24, at page 1; A Tomlin,
Submission 25, at page 1; A Wilson, Submission 26, at page 1; R Dryden,
Submission 27, at page 1; J Harris, Submission 28, at page 1; L Macpherson,
Submission 30, at pages 1-2; R Bulpin, Submission 33, at pages 1-2; N
Roberston, Submission 35, at pages 1-3; M Hyde, Submission 36, at page
1; G Shearston, Submission 37, at pages 1-2; K Auldist, Submission 40,
at page 1; J Aschmann, Submission 41, at pages 1-2; P Borradaile, Submission
42, at page 1; C Young, Submission 43, at page 1; W Menz, Submission 44,
at page 1; M Gowen, Submission 45, at page 1; A Wrenn, Submission 46,
at page 1; D Eadie, Submission 51, at page 1; J Ley, Submission 52, at
page 1; P Campbell, Submission 53, at pages 1-2; E Hughes, Submission
54, at page 1; A Ghita Prey, Submission 55, at page 1; D Veall, Submission
56, at pages 1-2; K Francis, Submission 57, at page 1; T Johnson, Submission
58, at page 1; R Kimberley, Submission 59, at page 1; K McKenzie, Submission
61, at page 1; S Foster, Submission 62, at pages 1-3; C Coulouris and
M Azzopardi, Submission 63, at page 1; R Stagg, Submission 64, at pages
1-2; V Prtenjaca, Submission 65, at pages 1-2; J Watson, Submission 69,
at pages 1-2; R Edwards, Submission 70, at page 1; F Honeyman, Submission
71, at page 1; S Meyers, Submission 72, at page 1; S Hampsey, Submission
73, at page 1; P Harvey, Submission 74, at page 1; K Lloyd, Submission
75, at page 1; C Shine, Submission 76, at page 1; B White, Submission
77, at pages 1-2; K Hunt, Submission 80, at page 1;J Litchfield, Submission
85, at pages 1-2; M Thomas, Submission 86, at page 1; G Hamilton, Submission
88, at pages 1-3; O Waters, Submission 91, at page 1; R Saunders, Submission
92, at page 1; J Cope, Submission 93, at page 1; S Harris, Submission
94, at page 1; P McGowan, Submission 95, at page 1; M Hart, Submission
97, at page 1; B Hart, Submission 98, at page 1; N Downey, Submission
99, at page 1; B Mackney, Submission 100, at page 1; C Newsome, Submission
103, at page 1; S Bester, Submission 104, at page 1; G Smith, Submission
105, at pages 2-4; S Barnes, Submission 109, at pages 1-3; L O'Neill,
Submission 111, at page 1; R Wilson, Submission 113, at pages 1-2; J Campano,
Submission 115, at pages 1-2; D Johnson, Submission 118, at page 1; P
Guazzelli, Submission 121, at pages 1-2; Society of Australian Songwriters,
Submission 131, at pages 1-2; The Love Dogs, Submission 132, at pages
1-2; E McCusker, Submission 133, at page 2; S Mancuso, Submission 134,
at pages 1-2; R Carpenter, Submission 135, at pages 2-3; C Lewis, Submission
136, at page 1; S McGlaughlin, Submission 139, at page 1; P Farnan, Submission
146, at pages 1, 6-9 and 12; B McMullen, Submission 155, at page 1; D
Sciacca, Submission 156, at page 1; Floodboy, Submission 157, at page
1; M Szabo, Submission 161, at page 1; M Woodward, Submission 162, at
page 1; Tamworth Songwriters' Association Inc., Submission 163, at pages
1-2; P Proud, Submission 38, at page 1; P Bennett, Submission 39, at page
1; J Allan, Submission 49, at page 1; H Poulsen, Submission 50, at page
1; J Raglus, Submission 60, at page 1; D Dee, Submission 66, at page 1;
Brenton Manser, Submission 79, at page 1; E Bogle, Submission 84, at pages
1-2; A Pool, Submission 96, at page 1; A Bloke, Submission 107, at page
1; P Sculthorpe, Submission 108, at page 1; E Duemin, Submission 114,
at pages 1-2; Nightlight Music Group Pty Ltd, Submission 120, at page
3; G Macainsh, Submission 123, at page 2; J Gronow, Submission 124, at
page 1; C Kenna, Submission 141, at page 1; Australian Music Industry
Network, Submission 151, at page 10; G Mack, Submission 158, at page 1
- small companies - Streetwise Music Australia Pty Ltd, Submission
20, at pages 1-2; London Music Group, Submission 34, at page 1; R Jeans,
Submission 68, at pages 1-2; P Cussen, Submission 112, at page 1; Larrikin
Music Publishing Pty Ltd, Submission 117, at page 2; Dryden Music, Submission
22, at page 1; Roadrunner Records, Submission 128, at page 1; Rajon Entertainment
Pty Ltd, Submission 140, at pages 1-2 - music publishers - Boosey
& Hawkes, Submission 47, at pages 1-2; Rondor Music (Australia) Pty
Ltd, Submission 78, at pages 1-2; MCA Music Publishing, Submission 89,
at pages 1-2; Warner/Chappell Music Australia Pty Ltd, Submission 106,
at pages 1-2; Caama Music, Submission 110, at pages 1-2 -others
- P Maxian, Submission 87, at page 1; M Lass, Submission 101, at pages
1-7; Songlines Music Aboriginal Corporation, Submission 119, at page 1;
Australian Songwriters Association Inc., Submission 137, at page 1; Mushroom
Music Pty Ltd, Submission 148, at pages 2-3.
[214] Copyright Amendment Bill (No 2)
1997, Explanatory Memorandum, at page 4.
[215] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 76.
[216] Australian Consumers' Association, Submission
166A, at page 30.
[217] for example, Papua New Guinea, Thailand,
Philippines and Taiwan: Australasian Performing Rights Association, Committee
Hansard, 4 February 1998, at L&C58; Australian Copyright Council,
Committee Hansard, 4 February 1998, at L&C 64.
[218] Australasian Performing Rights Association,
Committee Hansard, 4 February 1998, at L&C59.
[219] Australian Copyright Council, Committee
Hansard, 4 February 1998, at L&C 65.
[220] Australian Record Industry Association,
Submission 153, at page 32.
[221] Australian Bureau of Statistics, Business
of Music, Catalogue No. 4142.0, Canberra, 1996 at page 4.
[222] see A Gilfillan, Submission 130, at
page 3.
[223] see for example, Roadrunner Records,
Submission 128, at page 1.
[224] such as magazines relying on advertising:
Time Off, Submission 129, at page 1.
[225] see for example, S Bester, Submission
104, at page 1.
[226] Copyright Amendment Bill (No 2)
1997, Explanatory Memorandum, at page 4.
[227] see for example, Australian Competition
and Consumer Commission, Submission 159, at page 12; Australian Consumers'
Association, Submission 166A, at page 27.
[228] Australian Music Publishers' Association
and Australasian Mechanical Copyright Owners' Society, Submission 147,
at page 21.
[229] see Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 16.
[230] J Quiggin, Submission 175, at page 6;
there is a question whether s sound recording is substitutable rather
than a unique product.
[231] Prices Surveillance Authority, Report
No 35, 13 December 1990, at page 160.
[232] Copyright Amendment Bill (No. 2)
1997, second reading speech, Hansard, 20 November 1997, at page 10971;
a similar reverse onus proposal was suggested in the Copyright Amendment
Bill 1992, House of Representative Hansard, 16 December 1992, at page
3894.
[233] see for example, Australian Copyright
Council, Submission 164, at page 7; Australian Record Industry Association,
Submissions 153 and 153A, at pages 8 and 9 respectively.
[234] see for example, Mason and Gibbs JJ,
Milicevic v Campbell [1974-75] 132 CLR 307, at page 318.
[235] see Kirby J in Stephen Arthur Leask
v Commonwealth of Australia (1996) 180 CLR 579.
[236] see for example, N Stott Despoja, Report
on regulation of computer on-line services – part 3, Senate
Select Committee on Community Standards Relevant to the Supply of Services
Utilising Electronic Technologies, Minority Report, June 1997, at page
2.
[237] Sydney Morning Herald, 22 October 1997.
[238] The Australian, 14 November 1997.
[239] Billboard Bulletin, 20 March 1998, at
page 1.
[240] The Australian, 14 November 1997.
[241] C Pyne, Submission 177, at page 6.
[242] S Fiskvik; Billboard Bulletin, 20 March
1998, at page 1.
[243] European Union Directive 92/100/EEC.