Copyright Act 1968/Part 6

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Part VI.—The Copyright Tribunal.

Division 1.—Preliminary.

Interpretation. 136.—(1.) In this Part, unless the contrary intention appears—

“license” means a licence granted by or on behalf of the owner or prospective owner of the copyright in a literary, dramatic or musical work, or of the copyright in a sound recording, being—

(a) in the case of a literary, dramatic or musical work—a licence to perform the work or an adaptation of the work in public, to broadcast the work or an adaptation of the work, to make a sound recording or cinematograph film of the work or of an adaptation of the work for the purpose of broadcasting the work or adaptation or to cause the work or an adaptation of the work to be transmitted to subscribers to a diffusion service; or

(b) in the case of a sound recording—a licence to cause the recording to be heard in public or to make a record embodying the recording for the purpose of broadcasting the recording;

“licence scheme” means a scheme (including anything in the nature of a scheme, whether called a scheme or tariff or called by any other name) formulated by a licensor or licensors and setting out the classes of cases in which the licensor or each of the licensors is willing, or the persons on whose behalf the licensor or each of the licensors acts are willing, to grant licences and the charges (if any) subject to payment of which, and the conditions subject to which, licences would be granted in those classes of cases;

“licensor” means—

(a) in relation to licences in respect of a literary, dramatic or musical work-the owner or prospective owner of the copyright in the work or any body of persons (whether corporate or unincorporate) acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences; and

(b) in relation to licences in respect of a sound recording-the owner or prospective owner of the copyright in the recording or any body of persons (whether corporate or unincorporate) acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences;

“member” means a member of the Tribunal;

“order” includes an interim order;

“organization” means an organization or association of persons whether corporate or unincorporate;

“party” includes a person making representations to the Tribunal at an inquiry under section 148 of this Act;

“proceeding”, in relation to the Tribunal, includes an inquiry by the Tribunal under section 148 of this Act;

“the Deputy President” means the Deputy President of the Tribunal;

“the President” means the President of the Tribunal.

(2.) In this Part—

(a) a reference to conditions is a reference to any conditions other than conditions relating to the payment of a charge;

(b) a reference to giving an opportunity to a person or organization of presenting a case is a reference to giving the person or organization an opportunity, at the option of the person or organization, of submitting representations in writing, or of being heard, or of submitting representations in writing and being heard;

(c) a reference to a person who requires a licence of a particular kind includes a reference to a person who holds a licence of that kind if the person will, at the expiration of the period for which the licence was granted, require a renewal of that licence or a grant of a further licence of the same kind; and

(d) a reference to proceedings for infringement of copyright includes a reference to proceedings brought in respect of an alleged contravention of sub-section (5.) of section 132 of this Act.

(3.) For the purposes of this Part, a person shall not be taken not to require a licence to cause a sound recording to be heard in public by reason only of the operation of section 108 of this Act.

Cases to which licence schemes apply. 137.—(1.) For the purposes of this Part, a case shall, subject to the next succeeding sub-section, be deemed to be a case to which a licence scheme applies if, in accordance with a licence scheme for the time being in operation, a licence would be granted in that case.

(2.) For the purposes of this Part, where, in accordance with a licence scheme—

(a) the licences that would be granted would be subject to conditions by virtue of which particular matters would be excepted from the licences; and

(b) a case relates to one or more matters falling within such an exception,

that case shall be deemed not to be a case to which the scheme applies.

Division 2.—Constitution of the Tribunal.

Constitution of Tribunal. 138. There is hereby established a Copyright Tribunal, which shall consist of five members.

Appointment of members of Tribunal. 139. A member of the Tribunal shall be appointed by the Governor-General.

Qualifications of members. 140. A person shall not be appointed as a member unless he is or has been—

(a) a justice or judge of a federal court or of the Supreme Court of a State; or

(b) a barrister or solicitor of the High Court, or of the Supreme Court of a State or of a Territory of the Commonwealth, of not less than five years’ standing.

Tenure of office. 141. A member holds office for such period, not exceeding seven years, as is specified in the instrument of his appointment, but is eligible for re-appointment.

President and Deputy President of the Tribunal. 142.—(1.) The Governor-General shall appoint one of the members of the Tribunal to be the President of the Tribunal and another of the members of the Tribunal to be the Deputy President of the Tribunal.

(2.) The Deputy President shall act as President of the Tribunal during any vacancy in the office, or suspension, illness or absence, of the President.

Remuneration and allowances. 143.—(1.) A member shall be paid remuneration at such rate (if any) as the Governor-General determines, but the rate shall not be diminished during a term of office.

(2.) A member shall be paid such allowances (if any) in respect of travelling expenses as the Attorney-General determines.

Oath or affirmation of office. 144.—(1.) A member shall, before proceeding to discharge the duties of his office, take an oath or make an affirmation in accordance with the form of oath or affirmation in the Schedule to this Act.

(2.) An oath or affirmation shall be taken or made before a justice or judge of a federal court or of the Supreme Court of a State.

Resignation. 145. A member may resign his office by writing signed by him and delivered to the Governor-General.

Sitting of the Tribunal. 146.—(1.) Sittings of the Tribunal shall be held at such places and times as the President determines.

(2.) Subject to the next succeeding sub-section, the Tribunal shall be constituted by a single member.

(3.) Where—

(a) the Tribunal holds an inquiry under section 148 of this Act; or

(b) any party to an application or reference requests that the Tribunal be constituted by more than one member for the purposes of that application or reference,

the Tribunal shall, for the purposes of the inquiry, application or reference, be constituted by not less than two members of whom one shall be the President or the Deputy President, but nothing in this sub-section prevents a single member exercising the powers of the Tribunal in relation to matters of procedure.

(4.) At a proceeding before the Tribunal constituted by more than one member—

(a) if the President is one of the members constituting the Tribunal—he shall preside; and

(b) in any other case—the Deputy President shall preside.

(5.) Where the Tribunal constituted by more than one member is divided in opinion on a question, the question shall be decided according to the decision of the majority, if there is a majority, but if the Tribunal as so constituted is equally divided in opinion, the question shall be decided according to the opinion of the President or, if he is not one of the members constituting the Tribunal, according to the opinion of the Deputy President.

(6.) The Tribunal constituted by a member or members may sit and exercise the powers of the Tribunal notwithstanding that the Tribunal constituted by another member or other members is at the same time sitting and exercising those powers.

(7.) The exercise of the powers of the Tribunal is not affected by a vacancy or vacancies in the membership of the Tribunal.

(8.) Where a proceeding is commenced before the Tribunal constituted by two or more members and one of those members has become unable to continue to sit or has ceased to be a member, whether by death or otherwise, the remaining member or members may continue the hearing of the proceeding.

President to arrange business of Tribunal. 147. The President may give directions as to the arrangement of the business of the Tribunal and, subject to sub-section (3.) of the last preceding section, as to the constitution of the Tribunal for the purposes of particular proceedings.

Division 3.—Inquiries by, and Applications and References to, the Tribunal.

Inquiries into royalty payable in respect of records of musical works. 148.—(1.) This section applies where the Attorney-General requests the Tribunal in pursuance of section 58 of this Act to hold an inquiry in relation to the royalty, or the minimum royalty, payable in respect of records generally, or in respect of records included in a particular class of records.

(2.) Where such a request is made, the Tribunal shall hold the inquiry and shall give every person or organization that the Tribunal is satisfied has a substantial interest in the matter to which the inquiry relates an opportunity of presenting a case to the Tribunal.

(3.) As soon as practicable after the completion of the inquiry, the Tribunal shall make a report in writing to the Attorney-General setting out the result of the inquiry.

Applications to Tribunal for determination of remuneration payable for making recording or film of a work. 149.—(1.) This section applies where an application is made to the Tribunal in pursuance of sub-section (3.) of section 47, or sub-section (3.) of section 70, of this Act for the determination of an equitable remuneration to be paid to the owner of the copyright in a work for the making of a sound recording or cinematograph film of the work or of an adaptation of the work.

(2.) The parties to an application in relation to which this section applies are—

(a) the owner of the copyright in the work; and

(b) the maker of the recording or film.

(3.) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the recording or film.

Applications to Tribunal for determination of remuneration payable to owner of copyright in recording for making of record embodying the recording. 150.—(1.) This section applies where an application is made to the Tribunal in pursuance of sub-section (3.) of section 107 of this Act for the determination of an equitable remuneration to be paid to the owner of the copyright in a sound recording for the making of a record embodying the recording.

(2.) The parties to an application in relation to which this section applies are—

(a) the owner of the copyright in the recording; and

(b) the maker of the record.

(3.) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the record.

Applications to Tribunal for determination of remuneration payable to owner of copyright in recording in respect of public playing of the recording. 151.—(1.) This section applies where an application is made to the Tribunal in pursuance of sub-section (1.) of section 108 of this Act for the determination of an equitable remuneration to be paid to the owner of the copyright in a sound recording for the causing of the recording to be heard in public.

(2.) The parties to an application in relation to which this section applies are—

(a) the owner of the copyright in the recording; and

(b) the person who caused the recording to be heard in public.

(3.) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the causing of the recording to be heard in public.

Applications to Tribunal for determination of amounts payable for broadcasting published sound recordings. 152.—(1.) In this section, unless the contrary intention appears—

“Australia” does not include the Territories of the Commonwealth not forming part of the Commonwealth;

“broadcaster” means—

(a) the Australian Broadcasting Commission;

(b) the holder of a licence for a broadcasting station;

(c) the holder of a licence for a television station; or

(d) a person prescribed for the purposes of sub-paragraph (iii) of paragraph (a) or sub-paragraph (iii) of paragraph (b) of section 91 of this Act.

(2.) Subject to this section, an application may be made to the Tribunal for an order determining, or making provision for determining, the amount payable by a broadcaster to the owners of copyrights in published sound recordings in respect of the broadcasting, during a period specified in the application, of those recordings by that broadcaster.

(3.) An application under the last preceding sub-section may be made by the broadcaster or by the owner of a copyright in a published sound recording.

(4.) The parties to an application under sub-section (2.) of this section are—

(a) the person making the application; and

(b) such organizations or persons as apply to the Tribunal to be made parties to the application and, in accordance with the next succeeding sub-section, are made parties to the application.

(5.) Where an organization (whether claiming to be representative of broadcasters or of the owners of copyrights in published sound recordings or not) or a person (whether a broadcaster or the owner of a copyright in a published sound recording or not) applies to the Tribunal to be made a party to an application under this section, and the Tribunal is satisfied that the organization or person has a substantial interest in the matter that is the subject of the application, the Tribunal may, if it thinks fit, make that organization or person a party to the application.

(6.) The Tribunal shall consider an application under sub-section (2.) of this section and, after giving the parties to the application an opportunity of presenting their cases, shall make an order—

(a) determining, or making provision for determining, the amount payable by the broadcaster to the owners of copyrights in published sound recordings in respect of the broadcasting, during the period to which the order applies, by the broadcaster of those recordings;

(b) specifying as the persons among whom that amount is to be divided such of the persons who were, or were represented by, parties to the application as the Tribunal is satisfied are the owners of copyrights in published sound recordings; and

(c) specifying as the respective shares in that amount of the persons among whom that amount is to be divided and as the times at which those shares are to be paid such shares and times as those persons agree or, in default of agreement, as the Tribunal thinks equitable.

(7.) In so making an order in relation to a broadcaster, the Tribunal shall take into account all relevant matters, including the extent to which the broadcaster uses, for the purposes of broadcasting, records embodying sound recordings (other than recordings in relation to which section 105 of this Act applies) in which copyrights subsist, being copyrights owned by persons who are, or are represented by, parties to the application.

(8.) The Tribunal shall not make an order that would require a broadcaster being the holder of a licence for a broadcasting station to pay, in respect of the broadcasting of published sound recordings during the period in relation to which the order applies, an amount exceeding one per centum of the amount determined by the Tribunal to be the gross earnings of the broadcaster during the period equal to the period in relation to which the order applies that ended on the thirtieth day of June last preceding the date of commencement of the period in relation to which the order applies.

(9.) Where a broadcaster being the holder of a licence for a broadcasting station has, with the leave of the Australian Broadcasting Control Board under section 106 of the Broadcasting and Television Act 1942–1967, adopted an accounting period ending on a day other than the thirtieth day of June, the reference in the last preceding sub-section to the thirtieth day of June shall, in relation to that broadcaster, be read as a reference to that other day.

(10.) Sub-section (8.) of this section does not apply to an order in relation to a broadcaster unless―

(a) the broadcaster establishes to the satisfaction of the Tribunal the amount of the gross earnings of the broadcaster during the period in respect of which those earnings are to be determined; and

(b) the broadcaster carried on the transmission of programmes by way of sound broadcasting throughout the whole of that period.

(11.) Where an application is made to the Tribunal under sub-section (2.) of this section in relation to the Australian Broadcasting Commission, the Tribunal―

(a) shall make separate orders in respect of sound broadcasts by the Commission of published sound recordings and in respect of television broadcasts by the Commission of such recordings; and

(b) shall not make an order that would require the Commission to pay, in respect of sound broadcasts of published sound recordings during the period in relation to which the order applies, an amount exceeding the sum of―

(i) in respect of each complete year included in that period―the amount ascertained by multiplying one-half of One cent by the number equal to the number of persons comprised in the estimated population of Australia as last set out in statistics published by the Commonwealth Statistician before the making of the order; and

(ii) in respect of each part of a year included in that period―the amount that bears to the amount ascertained in accordance with the last preceding sub-paragraph in relation to a complete year the same proportion as that part of a year bears to a complete year.

(12.) A person who is not specified in an order in force under sub-section (6.) of this section as one of the persons among whom the amount specified in, or determined in accordance with, the order is to be divided may, before the expiration of the period to which the order applies, apply to the Tribunal for an amendment of the order so as to specify him as one of those persons.

(13.) The parties to an application under the last preceding sub-section for an amendment of an order are―

(a) the person making the application;

(b) the broadcaster in relation to whom the order applies;

(c) the persons specified in the order as the persons among whom the amount specified in, or determined in accordance with, the order is to be divided; and

(d) such organizations or persons as apply to the Tribunal to be made parties to the application and, in accordance with sub-section (5.) of this section, are made parties to the application.

(14.) The Tribunal shall consider an application under sub-section (12.) of this section for an amendment of an order in force under sub-section (6.) of this section (in this sub-section referred to as “the principal order”) and, after giving the parties to the application an opportunity of presenting their cases, shall, if it is satisfied that the applicant is the owner of the copyright or copyrights in one or more published sound recordings, make an order amending the principal order so as to—

(a) specify the applicant as one of the persons among whom the amount specified in, or determined in accordance with, the principal order is to be divided; and

(b) specify as the share of the applicant in that amount and as the times at which that share is to be paid such share and times as the applicant and the other persons among whom that amount is to be divided agree or, in default of agreement, as the Tribunal thinks equitable and make any consequential alterations in respect of the shares of those other persons.

(15.) An order of the Tribunal made under sub-section (6.) of this section in relation to a broadcaster applies in relation to the period commencing on the date specified in the order and ending on the thirtieth day of June next succeeding the date of making of the order.

(16.) The date that may be so specified in an order of the Tribunal made under sub-section (6.) of this section in relation to a broadcaster may be a date before the date of making of the order or before the date of making of the application but shall not be a date before the date of expiration of the period in relation to which the last preceding order (if any) of the Tribunal made under that sub-section in relation to that broadcaster applied or before the date of commencement of this Act.

(17.) An order of the Tribunal made under sub-section (14.) of this section amending an order of the Tribunal made under sub-section (6.) of this section applies in relation to the period commencing on the date of making of the amending order and ending on the date of expiration of the period in relation to which the order that is being amended applies.

(18.) Where an order of the Tribunal is in force under this section, the broadcaster in relation to whom the order applies is liable to pay to each of the persons specified in the order as the persons among whom the amount specified in, or determined in accordance with, the order is to be divided the share so specified in relation to that person and is so liable to pay that share at the times so specified and that person may recover any amount that is not paid in accordance with the order in a court of competent jurisdiction from the broadcaster as a debt due to the person.

(19.) For the purposes of this section, the gross earnings of a broadcaster in respect of a period are the gross earnings of the broadcaster during that period in respect of the broadcasting by him of advertisements or other matter, including the gross earnings of the broadcaster during that period in respect of the provision by him of, or otherwise in respect of, matter broadcast by him.

(20.) Where, in connexion with a transaction, any consideration is paid or given otherwise than in cash, the money value of that consideration shall, for the purposes of the last preceding sub-section, be deemed to have been paid or given.

(21.) Where the Tribunal is of the opinion that—

(a) an amount, or part of an amount, earned during any period by a person other than a broadcaster would, if the broadcaster and that person were the same person, form part of the gross earnings of the broadcaster in respect of that period for the purposes of this section; and

(b) a relationship exists between the broadcaster and the other person (whether by reason of any shareholding or of any agreement or arrangement, or for any other reason) of such a kind that the amount or the part of the amount, as the case may be, should, for the purposes of this section, be treated as part of the gross earnings of the broadcaster in respect of that period,

the Tribunal may so treat the amount or the part of the amount, as the case may be.

Applications to Tribunal for apportionment of royalty in respect of a record. 153.—(1.) This section applies where an application is made to the Tribunal in pursuance of paragraph (b) of sub-section (3.) of section 59 of this Act for an apportionment of an amount payable in respect of a record between the owner of the copyright in a musical work and the owner of the copyright in a literary or dramatic work.

(2.) The parties to an application in relation to which this section applies are—

(a) the owner of the copyright in the musical work; and

(b) the owner of the copyright in the literary or dramatic work.

(3.) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order apportioning the amount to which the application relates between the parties in such manner as it thinks equitable.

Reference of proposed licence schemes to Tribunal. 154.—(1.) Where a licensor proposes to bring a licence scheme into operation, he may refer the scheme to the Tribunal.

(2.) The parties to a reference under this section are—

(a) the licensor referring the scheme; and

(b) such organizations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with the next succeeding sub-section, are made parties to the reference.

(3.) Where an organization (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to a reference, and the Tribunal is satisfied that the organization or person has a substantial interest in the operation of the scheme to which the reference relates, the Tribunal may, if it thinks fit, make that organization or person a party to the reference.

(4.) The Tribunal shall consider a scheme referred under this section and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances.

(5.) An order (other than an interim order) of the Tribunal under this section may, notwithstanding anything contained in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Tribunal thinks fit.

(6.) Where a licence scheme has been referred to the Tribunal under this section, the licensor may do either or both of the following things:―

(a) bring the scheme into operation before the Tribunal makes an order in pursuance of the reference;

(b) withdraw the reference at any time before the Tribunal makes an order in pursuance of the reference, whether the scheme has been brought into operation or not.

(7.) If the scheme is not brought into operation before an order is made in pursuance of the reference, the scheme as confirmed or varied by the order comes into operation, notwithstanding anything contained in the scheme, forthwith upon the making of the order.

(8.) After the making of an order in pursuance of the reference, the scheme as confirmed or varied by the order remains in operation, notwithstanding anything contained in the scheme, so long as the order remains in force.

Reference of existing licence schemes to Tribunal. 155.—(1.) Where, at any time while a licence scheme is in operation, a dispute arises with respect to the terms of the scheme between the licensor operating the scheme and—

(a) an organization claiming to be representative of persons requiring licences in cases included in a class of cases to which the scheme applies; or

(b) any person claiming that he requires a licence in a case included in a class of cases to which the scheme applies,

the licensor, organization or person concerned may refer the scheme to the Tribuna! in so far as the scheme relates to cases included in that class.

(2.) The parties to a reference under this section are—

(a) the licensor, organization or person referring the scheme;

(b) if the reference is not made by the licensor operating the scheme—that licensor; and

(c) such other organizations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with the next succeeding sub-section, are made parties to the reference.

(3.) Where an organization (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to a reference, and the Tribunal is satisfied that the organization or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organization or person a party to the reference.

(4.) The Tribunal shall not begin to consider a reference under this section by an organization unless the Tribunal is satisfied that the organization is reasonably representative of the class of persons that it claims to represent.

(5.) Subject to the last preceding sub-section, where a licence scheme is referred to the Tribunal under this section, the Tribunal shall consider the matter in dispute and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, either confirming or varying the scheme, in so far as it relates to cases included in the class of cases to which the reference relates, as the Tribunal considers reasonable in the circumstances.

(6.) An order (other than an interim order) of the Tribunal under this section may, notwithstanding anything contained in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Tribunal thinks fit.

(7.) A reference of a licence scheme to the Tribunal under this section may be withdrawn at any time before an order is made in pursuance of the reference.

(8.) Where a licence scheme has been referred to the Tribunal under this section, the scheme remains in operation, notwithstanding anything contained in the scheme, until the Tribunal makes an order in pursuance of the reference.

(9.) The last preceding sub-section does not apply in relation to a reference with respect to any period after the reference has been withdrawn or after the Tribunal has refused to begin to consider the reference in pursuance of sub-section (4.) of this section.

(10.) After the making of an order in pursuance of the reference, the scheme as confirmed or varied by the order remains in operation, notwithstanding anything contained in the scheme, so long as the order remains in force.

Further reference of licence schemes to Tribunal. 156.—(1.) Where the Tribunal has made an order (other than an interim order) under either of the last two preceding sections with respect to a licence scheme, then, subject to the next succeeding sub-section, at any time while the order remains in force—

(a) the licensor operating the scheme;

(b) any organization claiming to be representative of persons requiring licences in cases included in the class of cases to which the order applies; or

(c) any person claiming that he requires a licence in a case included in that class,

may refer the scheme again to the Tribunal in so far as it relates to cases included in that class.

(2.) A licence scheme shall not, except with the leave of the Tribunal, be referred again to the Tribunal under the last preceding sub-section at a time earlier than―

(a) where the order concerned was made so as to be in force indefinitely or for a period exceeding fifteen months―the expiration of the period of twelve months commencing on the date on which the order was made; or

(b) where the order concerned was made so as to be in force for a period not exceeding fifteen months—the commencement of the period of three months ending on the date of expiration of the order.

(3.) The parties to a reference under this section are―

(a) the licensor, organization or person referring the scheme;

(b) if the reference is not made by the licensor operating the scheme―that licensor; and

(c) such other organizations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with the provisions applicable in that behalf by virtue of sub-section (5.) of this section, are made parties to the reference.

(4.) Subject to the next succeeding sub-section, where a licence scheme is referred to the Tribunal under this section, the Tribunal shall consider the matter in dispute and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order in relation to the scheme as previously confirmed or varied, in so far as it relates to cases included in the class of cases to which the reference relates, whether by way of confirming, varying or further varying the scheme, as the Tribunal considers reasonable in the circumstances.

(5.) Sub-sections (3.), (4.) and (6.) to (10.), inclusive, of the last preceding section apply for the purposes of this section.

(6.) The preceding sub-sections of this section have effect in relation to orders made under this section in like manner as they have effect in relation to orders made under either of the last two preceding sections.

(7.) Nothing in this section prevents a licence scheme in respect of which an order has been made under either of the last two preceding sections from being again referred to the Tribunal under that section―

(a) in so far as the scheme relates to cases included in a class of cases to which the order does not apply-at any time; and

(b) in so far as the scheme relates to cases included in the class of cases to which the order applied while it was in force-after the expiration of the order.

Applications to Tribunal in relation to licences. 157.―(1.) A person who claims, in a case to which a licence scheme applies, that the licensor operating the scheme has refused or failed to grant him a licence in accordance with the scheme, or to procure the grant to him of such a licence, may apply to the Tribunal under this section.

(2.) A person who claims, in a case to which a licence scheme applies, that he requires a licence but that the grant of a licence in accordance with the scheme would, in that case, be subject to the payment of charges, or to conditions, that are not reasonable in the circumstances of the case may apply to the Tribunal under this section.

(3.) A person who claims that he requires a licence in a case to which a licence scheme does not apply (including a case where a licence scheme has not been formulated or is not in operation) and—

(a) that a licensor has refused or failed to grant the licence, or to procure the grant of the licence, and that in the circumstances it is unreasonable that the licence should not be granted; or

(b) that a licensor proposes that the licence should be granted subject to the payment of charges, or to conditions, that are unreasonable, may apply to the Tribunal under this section.

(4.) An organization that claims that it is representative of persons requiring licences in cases to which a licence scheme does not apply (including cases where a licence scheme has not been formulated or is not in operation) and―

(a) that a licensor has refused or failed to grant the licences, or to procure the grant of the licences, and that in the circumstances it is unreasonable that the licences should not be granted; or

(b) that a licensor proposes that the licences should be granted subject to the payment of charges, or to conditions, that are unreasonable, may apply to the Tribunal under this section.

(5.) Where an organization (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to an application under any of the preceding sub-sections of this section, and the Tribunal is satisfied that the organization or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organization or person a party to the application.

(6.) Where an application is made to the Tribunal under sub-section (1.), (2.), (3.) or (4.) of this section, the Tribunal shall give to the applicant, to the licensor concerned and to every other party (if any) to the application an opportunity of presenting their cases and, if the Tribunal is satisfied that the claim of the applicant is well-founded, the Tribunal shall make an order specifying, in respect of the matters specified in the order―

(a) in the case of an application under sub-section (1.) of this section― the charges, if any, and the conditions, that the Tribunal considers to be applicable in accordance with the licence scheme in relation to the applicant;

(b) in the case of an application under sub-section (2.) or sub-section (3.) of this section―the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to the applicant; or

(c) in the case of an application under sub-section (4.) of this section—the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to persons, or to persons included in classes of persons, specified in the order, being persons who were represented by the applicant or were parties to the application.

(7.) A reference in this section to a failure to grant a licence, or to procure the grant of a licence, shall be read as a reference to a failure to grant the licence, or to procure the grant of the licence, as the case may be, within a reasonable time after a request to do so.

Effect of license scheme being continued in operation pending order of the Tribunal. 158.—(1.) Where a licence scheme is in operation by virtue of this Part pending the making of an order on a reference under this Part and a person, in a case to which the scheme applies, does anything that, apart from this sub-section, would be an infringement of would not be such an infringement if he were the holder of a licence granted in accordance with the scheme in so far as the scheme relates to cases to which the reference relates, that person shall, if he has complied with the relevant requirements, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.

(2.) For the purposes of the last preceding sub-section, the relevant requirements are—

(a) that, at all material times, the person concerned has complied with the conditions that, in accordance with the licence scheme, would be applicable to a licence in respect of the case concerned; and

(b) where, in accordance with the scheme, any charges are payabl. in respect of such a licence—that, at the material time, he had paid those charges to the licensor operating the scheme, or, if at that time the amount payable could not be ascertained, he had given an undertaking in writing to the licensor to pay the charges when ascertained.

(3.) A person who does anything in relation to which sub-section (1.) of this section applies is liable to pay to the licensor operating the licence scheme concerned the amount of any charges that would be payable if he were the holder of a licence granted in accordance with the scheme in so far as the scheme relates to the doing of that thing and the licensor may recover that amount in a court of competent jurisdiction from the person as a debt due to the licensor.

Effect of order of Tribunal in relation to licenses. 159.—(1.) Where an order made on a reference under this Part with respect to a licence scheme is for the time being in force and a person, in a case to which the scheme as confirmed or varied by the order applies, does anything that, apart from this sub-section, would be an infringement of copyright but would not be such an infringement if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, in so far as the scheme relates to cases to which the order applies, that person shall, if he has complied with the relevant requirements, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.

(2.) For the purposes of the last preceding sub-section, the relevant requirements are—

(a) that, at all material times, the person concerned has complied with the conditions that, in accordance with the licence scheme as confirmed or varied by the order, would be applicable to a licence in respect of the case concerned; and

(b) where, in accordance with the scheme as so confirmed or varied, any charges are payable in respect of such a licence—that, at the material time, he had paid those charges to the licensor operating the scheme, or, if at that time the amount payable could not be ascertained, he had given an undertaking in writing to the licensor to pay the charges when ascertained.

(3.) A person who does anything in relation to which sub-section (1.) of this section applies is liable to pay to the licensor operating the licence scheme concerned the amount of any charges that would be payable if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, in so far as the scheme relates to the doing of that thing and the licensor may recover that amount in a court of competent jurisdiction from the person as a debt due to the licensor.

(4.) Where the Tribunal has made an order on an application under sub-section (1.), sub-section (2.) or sub-section (3.) of section 157 of this Act specifying charges, if any, and conditions, in relation to the applicant, in respect of the matters specified in the order, then if—

(a) the applicant has complied with the conditions specified in the order; and

(b) in a case where the order specifies any charges-he has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained,

the applicant shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order.

(5.) Where the Tribunal has made an order on an application under sub-section (4.) of section 157 of this Act specifying charges (if any) and conditions, in relation to the persons, or to persons included in the classes of persons, specified in the order, in respect of matters specified in the order, then, if—

(a) any such person has complied with the conditions specified in the order; and

(b) in a case where the order specifies any charges-the person has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained,

that person shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order.

(6.) Where a person in relation to whom an order referred to in sub-section (4.) or sub-section (5.) of this section applies does, in relation to any of the matters specified in that order, anything that, apart from that sub-section, would be an infringement of copyright but would not be such an infringement if he were the holder of a licence in respect of the doing of that thing granted by the owner of the copyright concerned on the conditions and subject to payment of the charges (if any) specified in the order, that person is liable to pay to the owner of the copyright the amount of any charges that would be payable if he were the holder of such a licence and the owner of the copyright may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner of the copyright.

Interim orders. 160. Where an application or reference is made to the Tribunal under this Act, the Tribunal may make an interim order having effect until the final decision of the Tribunal on the application or reference.

Reference of questions of law to High Court. 161.—(1.) The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in proceedings before it for determination by the High Court.

(2.) A question shall not be referred to the High Court by virtue of the last preceding sub-section in pursuance of a request made after the date on which the Tribunal gave its decision in the proceedings unless the request is made before the expiration of such period as is prescribed.

(3.) If the Tribunal, after giving its decision in any proceedings, refuses a request to refer a question to the High Court, the party by whom the request was made may, within such period as is prescribed, apply to the High Court for an order directing the Tribunal to refer the question to the High Court.

(4.) Where a reference is made to the High Court under this section. with respect to any proceedings before the Tribunal, and where an application is made under the last preceding sub-section with respect to any such proceedings, every party to the proceedings before the Tribunal is entitled to appear and to be heard.

(5.) Where, after the Tribunal has given its decision in any proceedings, the Tribunal refers to the High Court under this section a question of law that arose in the course of the proceedings, and the High Court decides that the question was erroneously determined by the Tribunal—

(a) the Tribunal shall reconsider the matter in dispute and, if it considers it necessary to do so for the purpose of giving effect to the decision of the High Court, shall give to the parties to the proceedings a further opportunity of presenting their cases; and

(b) if it appears to the Tribunal to be appropriate, and in conformity with the decision of the High Court, to do so, the Tribunal shall make such order revoking or modifying any order previously made by it in the proceedings, or, in the case of proceedings under section 157 of this Act where the Tribunal refused to make an order, shall make such order under that section, as the Tribunal considers to be appropriate.

(6.) A reference of a question by the Tribunal to the High Court under this section shall be by way of stating a case for the opinion of the High Court.

(7.) Jurisdiction is conferred on the High Court to hear and determine a question of law referred to it under this section.

(8.) For the purposes of this section, a question of law does not include a question whether there is sufficient evidence to justify a finding of fact by the Tribunal.

(9.) This section does not apply in relation to an inquiry by the Tribunal under section 148 of this Act.

Agreements or awards not affected. 162. Nothing in this Part affects the operation of any agreement or of any award made by an arbitrator, whether the agreement or award was made before, or is made after, the commencement of this Act.

Division 4.—Procedure and Evidence.

Proceedings to be in public except in special circumstances. 163.—(1.) Subject to this section, the hearing of proceedings before the Tribunal shall be in public.

(2.) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may—

(a) direct that a bearing or part of a hearing shall take place in private and give directions as to the persons who may be present; or

(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal (whether in public or in private) or of matters contained in documents produced to the Tribunal.

Procedure. 164. In proceedings before the Tribunal—

(a) the procedure of the Tribunal is, subject to this Act and the regulations, within the discretion of the Tribunal;

(b) the Tribunal is not bound by the rules of evidence; and

(c) the proceedings shall be conducted with as little formality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit.

Mistakes or errors in orders of the Tribunal. 165. The Tribunal may correct, in any order of the Tribunal, a clerical mistake or an error arising from an accidental slip or omission.

Regulations as to procedure. 166.—(1.) The regulations may make provision for or in relation to the procedure in connexion with the making of references and applications to the Tribunal and the regulation of proceedings before the Tribunal and may prescribe the fees payable in respect of those references and applications and the fees and expenses of witnesses in those proceedings.

(2.) The regulations may include provision—

(a) for requiring notice of an intended inquiry by the Tribunal under section 148 of this Act or an intended reference to the Tribunal under section 154, section 155 or section 156 of this Act to be advertised in accordance with the regulations;

(b) for requiring notice of an intended application to the High Court under sub-section (3.) of section 161 of this Act to be given to the Tribunal and to the other parties to the proceedings, and for limiting the time within which any such notice is to be given;

(c) for suspending, or authorizing or requiring the Tribunal to suspend, the operation of orders of the Tribunal in cases where, after giving its decision, the Tribunal refers a question of law to the High Court;

(d) for modifying, in relation to orders of the Tribunal the operation of which is suspended, the operation of any provisions of this Part as to the effect of orders made under this Part;

(e) for the publication of notices, or the doing of any other things, to ensure that persons affected by the suspension of an order of the Tribunal will be informed of its suspension; and

(f) for regulating or prescribing any other matters incidental to or consequential upon any request, application, order or decision under section 161 of this Act.

Power to take evidence on oath. 167.—(1.) The Tribunal may take evidence on oath or affirmation, and for that purpose a member may administer an oath or affirmation.

(2.) A member may summon a person to appear before the Tribunal to give evidence and to produce such documents and articles (if any) as are referred to in the summons.

Evidence in form of written statement. 168. The Tribunal may, if it thinks fit, permit a person appearing as a witness before the Tribunal to give evidence by tendering, and verifying by oath or affirmation, a written statement, which shall be filed with the Secretary to the Tribunal.

Representation. 169. In proceedings before the Tribunal—

(a) a party other than a body corporate or an unincorporated body of persons may appear in person or be represented by an employee of the party approved by the Tribunal;

(b) a party being a body corporate may be represented by a director or other officer, or by an employee, of the party approved by the Tribunal;

(c) a party being an unincorporated body of persons or a member of such a body may be represented by a member, or by an officer or employee, of the body approved by the Tribunal; and

(d) any party may be represented by a barrister or solicitor of the High Court or of the Supreme Court of a State or of a Territory of the Commonwealth.

Division 5.—Miscellaneous.

Secretary and other staff. 170.—(1.) There shall be a Secretary to the Tribunal, who shall be appointed by the Attorney-General.

(2.) The Secretary, and any other staff necessary to assist the Tribunal, shall be persons employed under, or whose services are made available in accordance with arrangements made under, the Public Service Act 1922–1968.

Protection of members, barristers and witnesses. 171.—(1.) A member has, in the performance of his duty as a member, the same protection and immunity as a Justice of the High Court.

(2.) A barrister, solicitor or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

(3.) A person summoned to appear before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.

Disobedience to summons, &c. 172.—(1.) A person who has been summoned to appear as a witness before the Tribunal shall not, without lawful excuse, and after tender of reasonable expenses, fail to appear in obedience to the summons.

(2.) A person who has been summoned to produce a document or article to the Tribunal shall not, without lawful excuse, and after tender of reasonable expenses, fail to produce the document or article.

(3.) A person who appears before the Tribunal shall not, without lawful excuse, refuse to be sworn or to make an affirmation, or to produce documents or articles, or to answer questions, that he is required by the Tribunal to produce or answer.

Penalty: One thousand dollars or imprisonment for three months.

Contempt of Tribunal, &c. 173. A person shall not—

(a) insult or disturb a member in the exercise of his powers or functions as a member;

(b) interrupt the proceedings of the Tribunal;

(c) use insulting language towards a member;

(d) create a disturbance or take part in creating or continuing a disturbance in or near a place where the Tribunal is sitting;

(e) contravene or fail to comply with a direction of the Tribunal given under paragraph (b) of sub-section (2.) of section 163 of this Act; or

(f) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.

Penalty: One thousand dollars or imprisonment for three months.

Cost of proceedings. 174. (1.) The Tribunal may order that the costs of any proceedings before it incurred by any party, or a part of those costs, shall be paid by any other party and may tax or settle the amount of the costs to be so paid, or specify the manner in which they are to be taxed.

(2.) Costs directed by the Tribunal to be paid to a party may be recovered by that party in any court of competent jurisdiction.

(3.) This section does not apply in relation to an inquiry by the Tribunal under section 148 of this Act.

Proof of orders of Tribunal. 175. Without prejudice to any other method available by law for the proof of orders of the Tribunal, a document purporting to be a copy of such an order, and to be certified by the Secretary to the Tribunal to be a true copy of the order, is, in any proceeding, evidence of the order.