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PPCA PPCA Legal obligation The PPCA is a copyright collection agency that has the legal authority to license broadcasters’ use of sound recordings protected under the Copyright Act 1968. Previous licensing arrangements between the PPCA and community stations came to an end some nine years ago. The fact that during that period no community stations have had PPCA licences means that they have been using certain sound recordings unlawfully. In late 2001 after protracted discussions with the CBAA the PPCA made it clear that it would pursue legal action against community stations if they remained in breach of the law. From our sector’s point of view, the terms of the agreement may not be ideal but they are the best that could be negotiated with the PPCA. In the community broadcasting sector, the fee structure is being offered exclusively to CBAA members. Individual agreements can be entered into with the PPCA but they will still include the PPCA’s standard industry provisos, will certainly attract higher fees and will not provide release from liability for nine years of ‘back-fees’. Every station must obtain a PPCA licence The industry agreement that the CBAA signed with PPCA is not a licence agreement and does not confer upon any station permission to broadcast protected recordings. It recognises that the CBAA “has the right on behalf of its members to negotiate, settle and agree with PPCA the terms and conditions upon which the PPCA will grant radio stations a non-exclusive licence to PPCA Sound Recordings in Australia.” The industry agreement also establishes CBAA’s role in collecting fees on behalf of our members. So if your station wants to play the protected sound recordings covered by the PPCA, then the radio station agreement must be completed to effect licensing. Neither the Broadcasting Services Act nor the Copyright Act makes any legal distinction between a permanent licensee and a temporary so all community stations are liable. PPCA does not replace APRA and AMCOSS PPCA licences cover rights held by record companies over sound recordings.Stations must still hold licences from the Australasian Performing Right Association (representing songwriters, composers and publishers) for the broadcast of musical works and the Australasian Mechanical Copyright Owners Society controlling the reproduction rights applying to musical works and sound recordings. CBAA membership allows a concessional rate Over several years the CBAA has pushed for a lesser financial impost on stations than the PPCA would initially concede. The PPCA original demand was for an annual fee of 5% of turnover and it has taken considerable effort and negotiation to push it back to 0.4%. After consideration and approval by the CBAA’s National Committee, the CBAA entered into an industry agreement with the PPCA on the 29th of November 2001 which provides for the CBAA to undertake the administrative burden of fee collection and ‘locks-in’ a uniform, low rate for annual fees (0.4% with a minimum of $250). Unlike, say, the APRA agreement, fees are not adjusted on music usage. But the agreement does establish a concessional levy over three years in consideration of what would have otherwise amounted to nine years in back-fees. All monies collected will be remitted to the PPCA without any levy or commission for the CBAA. Annual fee invoiced each July The fee payable in 2001/2002 has been based on gross revenue for the 1999/2000 period. The initial invoice is effectively six months behind schedule. The fee for the next year falls due in July 2002 and will be based on 2000/2001 and so on. There is a drafting error in the agreement with the periods for assessment of fees a year out of sync. PPCA has been alerted and will make an amendment. Minimum fee (see "1.Interpretation") There has been a degree of concern about the minimum fee in proportional terms for stations with low turnover. The PPCA has set this minimum rate in consideration of what it believes is acceptable and affordable in dollar terms. The CBAA was successful in negotiating it down from $500. Bear in mind that prior to 1993 each and every station regardless of size paid the PPCA a flat $300 annual fee, which in those times was a more severe impost. The 7 week rule (clause 3.1 (a)) Stations are not allowed to reproduce or broadcast any PPCA sound recording before it has been published in Australia or before 7 weeks have elapsed and this has raised the hackles of some of our members. This obligation is not created by the agreement between the CBAA and PPCA - it is a standard term which applies to all broadcasters - whether commercial, community or narrowcaster. It is an obligation created by the Copyright Act (section 109) and Regulations - and the inclusion of this term in the contract is just an important reminder of a statutory obligation. Logging (3.1(d)& (e)) Music logging is essential to the fair disbursement by collection agencies of royalties to rights holders. Across the whole broadcasting industry music logging is an established practice. Neither the PPCA nor the CBAA want to see any additional resource burden imposed on community stations in this regard so it was agreed that rather than ‘reinvent the wheel’ stations should provide copies of logs already produced for APRA’s purposes. APRA logs a select sample of stations four times a year for a period of one week. If your stations does not currently supply logs to APRA it will only need to supply logs to PPCA “at times specified by the PPCA”. There are no immediate plans to require stations that are not being logged by APRA to supply logs just for the PPCA’s purposes although it is their legal right to require them. Ban on continuous playing of artist or album (3.1 (g)) The CBAA had argued strongly against this requirement on the grounds that it would impede the capacity of stations to feature artists or albums in special programs. The PPCA was not prepared to compromise on this point saying that the requirement to play no more than four tracks from the same album or artist without a break of fifteen minutes between the third and fourth track is a standard provision of agreements throughout the broadcasting industry. Its policy intention is prevent the continuous playing out of an entire CD to prevent off-air recording of sound recordings. In practical terms there is little likelihood of the PPCA policing the duration of the break. After being approached by the fine music stations the PPCA has said that will entertain making exemptions to this rule for the broadcast of operatic or symphonic works. PPCA rights of entry, examination and audit The PPCA is lawfully entitled to enter into an agreement which secures access to premises and company/association records for legitimate business purposes. In any case, a requirement of CBAA membership is that stations provide audited financial statements to us each year. Because the CBAA has undertaken to calculate fees based on these statements and collect payments, the prospect of PPCA entering premises and making copies of accounts would only ever transpire if a station refused to divulge its true financial position or attempted to withhold financial reports. Compliance is advisable The CBAA has diligently represented the interests of community broadcasters in all dealings with the PPCA and striven to negate unnecessary or onerous contractual stipulations. The CBAA has entered an industry agreement which maximises the benefits for our member stations collectively but will entail a degree of compromise for some stations. If issues arise, the CBAA will continue to represent its members and take all reasonable steps to dissuade the PPCA from pursuing unnecessary or punitive legal action against members. However the PPCA has strongly expressed its preparedness to take legal action against stations who use protected sound recordings without a licence. It would not be in the interests of our membership for the CBAA to endorse any station’s refusal to enter into a licence agreement and we do not recommend that stations continue to use protected sound recordings without a licence. None of this is all that welcome, I guess to our largely volunteer sector which is struggling with limited resources and tight budgets. If the CBAA can be of any assistance please contact: Cameron Woods on: (02) 9318 9606 or cwoods@cbaa.org.au |
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