Commencing July 2002, the organisations that collect licences on behalf of copyright owners for various uses of copyright work in Australia adopted a code of conduct, called the Code of Conduct for Copyright Collecting Societies (“the Code”). The collecting societies are as follows:
- Australasian Performing Rights Association Limited (“APRA”);
- Australasian Mechanical Copyright Owners Society Limited (“AMCOS”);
- Phonographic Performance Company of Australia (“PPCA”);
- Copyright Agency Limited (“CAL”);
- Audio-Visual Copyright Society Limited (“Screenrights”);
- Viscopy Limited (“Viscopy”);
- Australian Writers’ Guild Authorship Collecting Society Limited (“AWGACS”); and
- Australian Screen Directors Authorship Collecting Society Limited (“ASDACS”).
The Code requirements
The Code sets out minimum standards that the societies must comply with to ensure that the societies provide a transparency of their operations to their members and licensees of copyright material.
The Code sets out the obligations of Collecting Societies in dealings with their members and licensees, including:
- fairness of dealings with members and licensees;
- the provision of information relating to the Constitution, licences and licence schemes of the Collecting Society, to members and/or licensees and potential members and/or licensees;
- the clear and understandable drafting of licences;
- consultation as to the terms and conditions of licences;
- fair and reasonable licence fees, having regard to certain matters such as value of the copyright material, purpose and context of how the copyright material is intended to be used etc.
Each Collecting Society is to maintain and provide to members upon request a Distribution Policy which sets out the manner of calculating entitlements and receiving payments from remuneration and/or licence fees, the manner and frequency of such payments to members and the amount to be deducted from revenue before distribution. These deductions may include managing and operating expenses and other amounts authorised by the Constitution of the Collecting Society.
The Collecting Societies have minimum governance and accountability obligations, which are that:
- the Board of Directors are to be representative of and accountable to, its members.
- the Code sets out the financial reporting requirements for Collecting Societies, with respect to their content and annual auditing.
- Collecting Societies are to provide members with information about their payment entitlements upon request.
- the Code sets out the Annual Report content requirements for a Collecting Societies, including total revenue for the reporting period, total sum and nature of general expenses and allocation and distribution of payments to members under the Distribution Policy.
Collecting Societies required to reasonably ensure that employees and agents are aware of and comply with, the Code.
Collecting Societies are to undertake activities promoting awareness among members, licensees and the general public of various copyright and Collecting Society issues. The nature and extent of the activities will be dependent upon the nature of each individual Collecting Society.
Each Collecting Society is to develop and publicise procedures for dealing with member and licensee complaints and resolving any disputes between the Collecting Society and members and/or licensees concerning matters covered by the Code. These procedures are to comply with the requirements of Australian Standard 4269-1995 Complaints Handling, having particular regard to such matters as categories of complaints and disputes that the Collecting Society deals with and how each category of complaint is dealt with, and the need to be fair to both the complainant and the Collecting Society, and are to be regularly reviewed for compliance with the Code.
Collecting Societies are to publicise the Code and its agreement to be bound by it, provide copies of the Code to members, licensees and the general public upon request, and include in its Annual Report a statement about its compliance with the Code.
The Code also stipulates that the Collecting Societies will be monitored and reviewed on compliance with the Code and if there are any further amendments to the Code that are recommended.
First anniversary review
The Collecting Societies were subject to their first monitor and review by the Honourable JCS Burchett QC. Mr Burchett’s findings were published on 26 September 2003. The Review process requested submissions from members, licensees, trade associations, the ABC and the Collecting Societies themselves. The review found that there was a high level of compliance with the Code by the Collecting Societies.
Each Collecting Society was found to have very high standards and taken the obligations to “treat members fairly, honestly, impartially and courteously” and education of employees, agents and the public regarding the Code and copyright generally very seriously. The larger Collecting Societies, such as APRA, AMCOS, CAL and Screenrights had more sophisticated and wide reaching education programs.
The review found that the Collecting Societies were providing licensees with transparency in regards to licences by taking reasonable steps to issue licences in “plain English”. The review acknowledged that the complexity of copyright law adds a level of difficulty to drafting plain English licences and although there were no complaints from the public regarding the form of the licences the reviewer believes the Code aims higher and recommends that the Collecting Societies review their licences regularly.
APRA, AMCOS, CAL, Screenrights, PPCA and Viscopy have implemented dispute resolution processes and complaint handling systems. ASDACS and AWGACS are yet to implement complaint or dispute procedures, but both are in the process of doing so.
The review focused on how the Collecting Societies dealt with complaints and disputes. CAL, PPCA, ASDACS and AWGACS had no reported complaints. The review on complaints and enquiries of APRA and AMCOS (APRA administers AMCOS) where APRA has a large percentage of its licensees are small businesses, had the most complaints. APRA divides its complaints into those from licensees and those of members. The reviewer found that the majority of complaints dealt with involved licensee’s who did not comprehend APRA’s role or copyright law, with resentment at having to pay licences.
Screenrights had only one complaint, which was not an allegation against Screenrights itself, but a dispute regarding entitlement to a licence fee. Screenrights engaged an expert to determine an outcome which was satisfactorily concluded.
The major complaints against Viscopy evolved out of an agreement which involved a problem which did not result in a failure to comply with the Code and a pre-Code agreement which Viscopy acted for a member above and beyond its obligations. The reviewer only recommended that Viscopy clarify what they can and cannot do for members.
Generally the Code and compliance with the Code has been taken seriously by the Collecting Societies. It seems that most complaints involved misunderstandings on rights and obligations under copyright law. A further review is scheduled after the second year anniversary of the adoption Code.