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13 May 2011: High Court appeal dismissed The PPCA's application to the High Court to appeal to the Federal Court decision in relation to the above scheme has been dismissed by the High Court. This means that the Copyright Tribunal decision of May 2010, of a per class rate of $15.00 is no longer applicable. Although it is not over yet, this is agreat outcome for the fitness industry and a landmark decision, followig five yeas of intense battle. Thank you to everyone who has contributed to this outcome and too all registered exercise professionals who have contributed over the last three years. 10 March 2011: Copyright decision Appeal Behind the scenes Fitness Australia ended the year of 2010 on a high note with the Federal Court ruling to set aside the Copyright Tribunal’s Order of 17 May 2010 regarding the PPCA licence fees payable in respect of the use of music in fitness classes (Tariff V). In its ruling, the Federal Court stated that “…we are of the opinion that the Tribunal did conduct itself in a way which was procedurally unfair to Fitness Australia.” On 13 December 2010, the Federal Court ordered that the matter be returned to the Tribunal for determination according to law. As a result, the PPCA licence fees payable under Tariff V will remain at the current rates until further notice. Fitness Australia is thrilled with this outcome as there was a strong belief that a breach of natural justice did occur in connection with the making of this decision, following a hard fought and resource intense battle in the Copyright Tribunal in 2009. Click here to read the full article in the March issue of reps Magazine.
20 January 2011: Fitness wins Appeal but Music Copyright Battle Continues The fitness industry has welcomed the Federal Court ruling to set aside the Copyright Tribunal’s Order of 17 May 2010 regarding the PPCA licence fees payable in respect of the use of music in fitness classes (Tariff V). In its ruling, the Federal Court stated that “…we are of the opinion that the Tribunal did conduct itself in a way which was procedurally unfair to Fitness Australia.” As a result, the PPCA licence fees payable under Tariff V will remain at the current rates until further notice. Fitness Australia is thrilled with this outcome as there was a strong belief that a breach of natural justice did occur in connection with the making of this decision, following a hard fought and resource intense battle in the Copyright Tribunal in 2009. However, this issue is far from over.
On 13 December 2010, the Federal Court ordered that the matter be returned to the Tribunal for determination according to law. In a more recent move, the PPCA has advised Fitness Australia that it has applied for Special Leave to appeal the decision of the Full Federal Court to the High Court of Australia. Fitness Australia is awaiting advice on this matter from its legal advisors.
13 December 2010: Federal Court 'on song' with fitness industry over music rights The fitness industry has welcomed the decision by the Federal Court to overturn the Copyright Tribunal decision to increase copyright fees for the use of music in group exercise classes by 1,500%, on the basis of procedural fairness. Read the full media release. 26 November 2010: Appeal of Copyright Tribunal decision The Appeal of the Copyright Tibunal decision took place last Friday, however we are still awaiting a decision from the Federal Court. 16 September 2010: Revised Licence Scheme The PPCA has informed Fitness Australia that the effective date for the introduction of the revised Tariff V licence for the use of music in group exercise classes will be 1 January 2011, as opposed to 1 November 2010 which was the original date set by them following the Copyright Tribunal decision. PPCA has also introduced a revised phase-in schedule for the introduction of the licence that differs from that communicated by them earlier in the year. The revised phase-in schedule is as follows (from the PPCA website):
CPI increases will apply from 1 July 2017. An eligible licensee is a licensee under the new scheme who:
2 September 2010: Fitness Australia to proceed with Appeal of Copyright Tribunal decision Fitness Australia will proceed with the Appeal of the Copyright Tribunal decision in the Federal Court and this is scheduled to take place on 26 November 2010.
26 August 2010: Copyright Tribunal decision Fitness Australia has agreed to enter into a mediated negotiation with the PPCA regarding the Fitness Class Tariff and the recent decision in the Copyright Tribunal in order to attempt to reach a commercial agreement and avoid further court proceedings. This will take place in Sydney on Wednesday 1 September 2010. Fitness Australia will be represented by the following people at the negotiation:
We anticipate that the PPCA will provide us with a position paper by the end of this week with regard to the negotiation agenda. The negotiation will be mediated by an independent third party. Should these negotiations fail to reach a mutually acceptable resolution, the Appeal in the Federal Court will proceed and is scheduled for Friday 26 November 2010. 17 June 2010: Fitness Australia appeals tribunal decision. An appeal against the Copyright Tribunal decision on the value of the PPCA licence to play protected sound recordings in fitness classes was lodged by Fitness Australia yesterday in the Federal Court of Australia. A Directions Hearing will be held on 9 July 2010 at 9.30am to ascertain the Court process for this application. Revised Licence Scheme The PPCA has proposed that the revised Licence Scheme be introduced as at 1 November 2010 with a phase-in period for the new tariff rate from 2010-2012. These orders have now been lodged with the Copyright Tribunal. The proposed phase-in schedule is as follows:
Download the Operation M.U.S.I.C Copyright Information Sheet
27 May 2010: Where to from here?.... On 17 May 2010, the Australian Copyright Tribunal handed down a decision to substantially increase copyright fees for the use of protected sound recordings in group exercise classes, following the outcome of a lengthy battle between the Phonographic Performance Company of Australia (PPCA) and Fitness Australia. The current PPCA license fee for Tariff V is 96.8 cents per fitness class with a capped annual maximum of $2,654. The Copyright Tribunal has decided to substantially increase this to either $15 per class or to $1 per attendee per class, which equates to an increase of 1,500% for the cost of a PPCA license in a typical fitness centre running 30 classes per week. This decision has several ramifications for the fitness industry and the way in which music is purchased and used now and into the future. As a consequence of this decision, some members are considering using only sound recordings which are not controlled by PPCA (Non-PPCA Recordings) and are asking for advice in this regard. To assist the industry, Fitness Australia has prepared an Information Sheet for Members with the help of Minter Ellison Lawyers. This document titled “Guidelines for Use of Music in Fitness Centres and Studios” has been developed to explain the way music may be used in fitness centres and to provide some further information on how to gain access to sound recordings that are not controlled by PPCA. During the determination hearing, the Tribunal stated that they “reject the principle evidentiary basis put forward by PPCA in the form of the gym survey as a reliable indicator of willingness to pay for protected music in fitness classes.” However, the Tribunal relied on other evidence and “judicial estimation” to arrive at the new Tariff rate of $15 per class. The Tribunal also ordered the parties to re-convene prior to 30 June 2010 to ratify a date for the new tariff to become effective. The new rate – effective date
Existing Licence Agreements
Options available to the industry
Download the Guidelines for use of music in fitness centres and studios
18 May 2010: PPCA v Fitness Aus decision (click to download .pdf) The attached document was issued by the Copyright Tribunal on 17 May 2010 in relation to the reference by the Phonographic Performance Company of Australia (PPCA) to which Fitness Australia was a Respondent. The Tribunal has decided that the current PPCA Tariff V, for the public broadcast of protected sound recordings in fitness classes, be amended and that the licence fee be increased to $15 per class or $1 per attendee per class (up from 96.8c per class). The Tribunal has ordered the parties to re-convene prior to 30 June 2010 to agree on a date for the amended scheme to become effective and to decide whether or not the new rate will be phased in over a specific timeframe. Fitness Australia is now reviewing the full judgment and, in consultation with its legal counsel and its Members, will consider the options available to the fitness industry.
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17 May 2010: Copyright Tribunal out of tune, says Fitness Australia The fitness industry said it is extremely disappointed with the Copyright Tribunal decision to substantially increase copyright fees for the use of music in group exercise classes, following the outcome of a fierce battle with the Phonographic Performance Company of Australia (PPCA).
For an average-size fitness centre with 1,500 members and running 30 fitness classes per week, today’s decision represents an annual cost increase from the current $1,510 per year to $23,400 per year, or an increase of 1,500%1. The PPCA had sought an increase in fees of approximately 4,000%.
March 2010: Judgement regarding CT1 of 2006 : Reference by PPCA in the Copyright Tribunal. The Copyright Tribunal has advised Fitness Australia that it will deliver judgment on the above case at 10.15am on 17 May 2010. The judgment will be delivered in courtroom 18A, Law Courts Building, Queens Square, Sydney.
February 2010: The Copyright Tribunal has written to the parties in the proceedings to inform them that the Tribunal does not propose to fix a rate based upon a periodic membership fee. This news has been cautiously welcomed by Fitness Australia as we argued very strongly against a "per member per month" rate for music used in group exercise classes, as proposed by the PPCA. However, a revised rate has not yet been determined but will be decided by the Tribunal before the end of May 2010. June 2009: Fitness Australia v PPCA: Closing submissions to be heard in the Copyright Tribunal
May 2009: The Copyright Tribunal heard its final day of evidence on Friday 17 April 2009 in relation to the record company’s roposal, through the PPCA, to alter and increase the fitness class tariff. Expert and industry witnesses for Fitness Australia performed extremely well under cross-examination and our legal team presented an excellent case in response. Closing submissions are now to be written by each party and will be presented orally to the Tribunal over three days in the week beginning 29 June 2009. A determination will be made by the Tribunal on the licence scheme and tariff rate some time after that date.
March 2009: Briefing Update PPCA Case FAL 18.02.09. Click to read pdf December 2008: Fitness Australia has agreed to enter into a mediated negotiation with the PPCA. Click here for further information. June 2008 : On June 13, 2008, Fitness Australia filed its Points in Response in answer to the PPCA's Statement of Pointsin support of its application to the Copyright Tribunal to change the Fitness Class Licence Scheme and increase the tariff payable by fitness centres for the use of recorded music. Please click here to review the Points in Response (pdf). May 2008 : The current claim by PPCA is that Fitness Centres that play music for group exercises should pay a tariff of $4.54 per member per month regardless of whether that member takes part in group exercise classes.
The current tariff is $0.968 per class run by the Fitness Centre up to a capped maximum of $2,653.64. This website previously contained statements that the PPCA claim would be a massive increase and that the increases would be 3000% or $5000%. PPCA has had their lawyer write to complain about the website which they said was misleading. We have now revisited our calculations which indicate the results could be far worse. So you can make up your own minds. We set out below a comparison of the current scheme and the proposed scheme and have set out some examples of the effect of the scheme in different scenarios. These examples show that the increases will vary widely and may be 'Only' 2706% or could be around 16,235%. It depends on your particular operation.
January 2008 :
October 2007:
Media Release 12.07.07: Click Here The Clubs and Hotel Case Ruling: Click here Previous dates :
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Page updated 16 May 2011 |