Bruce Woodley of the Seekers and his company Pocketful of Tunes Pty Ltd have been awarded almost $150,000 in the Copyright Tribunal after the Australian Government used his famous song “I Am Australian” on a DVD sent to councils to play at citizenship ceremonies. “I Am Australian” is one of the most recognisable Australian songs of all time, and has been played at AFL grand finals, charity concerts, the Sydney Olympics and at Federal Parliament since it was written in 1987 by Woodley and Dobe Newton of the Bushwhackers. According to the case:
“when a short segment of the Song was played, 97% of the general public in New South Wales and Victoria and 100% of the 4 to 12 year old children surveyed said that they recognised the Song” [at 9].
In December 2008, the Department of Immigration and Border Protection commissioned a media company to produce an “Australian citizenship video montage” to be used in Australian citizenship ceremonies. Although the Commonwealth made a payment for music licences to APRA, it did not obtain a licence to the synchronisation right for the song, ie. “the right to reproduce and use the lyrics on the sound-track to a cinematograph film or other audio visual presentation” [at 2]. Copies of the montage were distributed to around 565 local government councils, to regional and overseas offices, and were used at various citizenship information services. After the Department became aware of a complaint by Mr Woodley in August 2012, the Department wrote to all Councils and asked them to cease using the Montage until further notice.
Mr Woodley and Pocketful of Tunes applied to the Copyright Tribunal under s 183(5) of the Copyright Act 1968 (Cth) to seek the fixing of terms for the past use of the Song. There were two issues in the dispute – how to calculate the appropriate compensation, and whether a purported assignment of rights from Woodley to Pocketful of Tunes posed any issues.
Justice Bennett of the Copyright Tribunal noted that:
“The principles to be applied in assessing compensation under s 183(5) of the Act are not the same as those to be applied in determining damages for copyright infringement. The determination is of the value of the right that has been exercised by the Commonwealth for which the copyright owner is compensated and not the loss suffered by the copyright owner. There are very few cases relating to s 183(5) of the Act and those that have been decided provide limited guidance on how to proceed with the calculation in this case.” [at 18]
The parties put forward a number of submissions as to how to possibly value the compensation. This included giving evidence of the cost of a number of other licences that Mr Woodley had granted to other parties, as well as evidence as to the Commonwealth’s budget for the montage and estimates of when and where it was played. The parties ultimately agreed that “the imprecision of the evidence meant that the evidence alone could not form an adequate basis to support precise calculations” [at 52].
The applicants finally contended for what they described as “an extrapolation based on actual usage by the Commonwealth”, which they calculated as being around $226,000 per year. The Commonwealth argued for a calculation based on population size and calculated from a somewhat similar license that had been obtained by Brisbane City Council. On their calculations, this amounted to $35,802 per year over a four year period.
Justice Bennett eventually primarily accepted the Commonwealth’s calculation as being the correct ones, but added an additional premium to account for the fact that they would have negotiated for a national licence, rather than one for each individual council. However, she also noted:
“On the basis of the evidence, which includes the amount that Mr Woodley says that he would have demanded and the amount that the Department had available and would have been prepared to pay, it is evident that it is most unlikely that any agreement for the licensing of the Song would have been reached.”
Justice Bennett also dismissed the part of the claim referring to the assignment of rights between Mr Woodley and Pocketful of Tunes, finding that the company had a genuine right of action and should be paid the $149,743.34 compensation.
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Pocketful of Tunes Pty Ltd v The Commonwealth of Australia  ACopyT 1
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