Payment of Licensing Fee to Fiji Performing Right Association Limited For Public Performance

Memorandum of Opinion

1. We are requested to provide you with our legal views on whether the hotels / resorts are required to pay a licence fee to Fiji Performing Right Association (“FPRA”)in respect of public performance held at hotels / resorts premises for entertainment of guests.
2. In particular, you enquire whether a licence fee is required to be paid to FPRA for public performance such as, live bands performing at the hotels / resorts.
3. For the purposes of this opinion, we have carefully reviewed the applicable legislations that is, the Fiji Copyright Act 1999 (“the Act”) and its amendments[1] the relevant conventions being Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention. In addition, we have read several legal commentaries on the subject matter, in particular those relating to copyright laws on playing music / holding of performances in public places.

Is public performance protected under Fiji’s legislation?

4. Part X of the Copyright Act recognizes and protects ‘Performer’s rights’.
5. A ‘ performance’ is defined under Part X as:

“ (i) a dramatic performance, including a dance, mime and a performance given with the use of puppets

(ii) a musical performance;

 (iii) a reading or recitation of a literary work;

 (iv) a performance of a variety act or any similar presentation, being in any such case either-

 (a)  A live performance given in any country by a Fiji Islands or person domiciled or resident in the Fiji Islands, or by a citizen or subject of a person domiciled or resident in a Convention country;

(b)  A live performance given in the Fiji islands or in a convention country…”

 The Act excludes any ‘performance’ which at the commencement of the Act is more than 50 years old unless the Performer’s rights are transmitted to another person by testamentary disposition or if the personal representative seeks to exercise the Performer’s right.

7. Section 166 and 167 of the Act reads:

Consent Required For Recording or Live Transmission of Performance

166-“A Performer’s rights are infringed by a person who, without the Performer’s consent-

(a)  Makes, otherwise than for the person’s private and domestic use, a recording of the whole or any substantial part of a performance; or

(b)  Broadcasts live, or communicates to the public, the whole or any substantial part of a performance.

Infringement By Use Of Illicit Recording

 167- A Performer’s rights are infringed by a person who, without the performer’s consent-

(a)  Presents for public performance the whole or any substantial part of a performance; or

(b)  Broadcasts, communicates to the public or includes in a cable programme the whole or any substantial part of a performance,

by means of a recording that is, that the person knows or has reason to believe is, an illicit recording

8. Having read the above provision, in our view, if say for instance a dance group originally choreographs a dance routine such as a ‘meke’[2] and that choreographed meke is copyrighted, no one else can without the Group’s consent reproduce and showcase the performance at a public place. In same breadth, if a band owns copyright in its originally created music, another band cannot without consent play or perform to the copyrighted music of that Band that originally created the music. This restriction will not apply for instance if the hotel for instance has staff performing to a meke which was created more than 50 years ago or a band playing music which was created or recorded more than 50 years ago subject to any transmission of performer’s rights.

9. However if for instance the Group or the Band that performs in public to its own copyrighted meke, dance routine, music or any other dramatic or literary work, there is no need for the hotelier / resort owner to secure consent or pay licence fee to a person who may hold or own a performer’s right. 

How Can You Avoid Infringement of Performer’s Right?  

10. This is dealt with by the Act under section 189, which reads:

“189 (1)            Consent for the purpose of this Part may be given in relation to a specific performance, a specified description of performances, or performances generally, and may relate to past or future performances. 

          (2)          If a right conferred by this Part passes to another person, any consent binding on the person previously entitled binds the person to whom the right passes in the same way as if the consent had been given by that person”

11. By virtue of the above provision, a hotel / resort holding consent from a Performer or from a Performer’s right’s holder is entitled to show the performances.

12. Hotels / resorts who hire artists to perform or live bands for music entertainment should ideally obtain indemnity or disclaimer from the artists or the band that:

(i)                  they are performing to their own original works; and

(ii)                that they are not infringing any other Performer’s right by performing to any dramatic, literary or musical works; and

(iii)               they will indemnify the hotel / resort in the event of an infringement

Does Fiji Performing Right Association Ltd [“FPRA”] have the legal right to demand payment of license fee in respect of ‘ Performer’s Rights’? 

13. We are instructed that FPRA have demanded that the hotels / resorts pay licence fees for ‘casual public performance’. The rate demanded is $246-75 per day. In our view, these casual performances may include performance by live bands or performance by dance groups/artists.

14. FPRA is a non-government organisation and holds itself out as the administrator of the performing rights of its local composer and song writer members. It claims to hold a license agreement with APRA AMCOS (Australasian Performing Right Association Ltd), by virtue of which it claims to represent foreign music composers and song writers.

15. FPRA according to their website claim that “all sorts of businesses need a license from FPRA for the use of copyright musical in their business.” It further states that it collects royalties for the performance and communication of music. In return for the right to perform or communicate music, these clients (businesses) pay FPRA a license fee. It claims that “through direct agreements with its members and reciprocal arrangements with overseas performing right societies, FPRA is able to administer the public performance, broadcast and communication rights in relation to musical works throughout the Fiji Islands”.

16. It appears from the FPRA’s website that they only represent local composers or song writers and not performers however they claim to have agreements with members to administer “public performance’ but these may in our opinion be restricted to use of music and not any other form of dramatic or literary works.

17. The letter dated 14 November 2013 from Attorney General’s chambers seems to suggest that FPRA makes no claim to collect licence fees for ‘Performing right’. This issue needs to be clarified both from the FPRA and Attorney General’s chambers before the hotels/ resorts decide to pay FPRA for ‘public performance ‘ licence fee.

18. To understand how FPRA works and whether it has a legal standing under our laws, we have reviewed how APRA is set up and how it has become legally recognized in Australia.

19. In Australia, the Copyright Act 1968 has recognized copyright licensing schemes. Some are statutory and some are voluntary. For purposes of the Australian Copyright Act, APRA is a voluntary collecting society.

20. APRA is a collecting society in Australia that provides public performance licenses covering the copyright in the musical works (e.g lyrics, composition). A public performance licence from APRA is a blanket licence that covers APRA’s entire repertoire. Similar to FPRA, APRA’s repertoire consists of works by Australian and foreign composers.

21. Here, FPRA claims to provide licences for the exercise of performing rights in music.

22. The Act states that a “licensing body” is a body of persons ( whether corporate or unincorporated) that, as copyright owner or prospective copyright owner or as an agent for a copyright owner, negotiates and grants copyright licenses including licences that cover the works of more than one author”.

23. Our research indicates that APRA deals in two distinct parts of the copyright bundle, the right to perform a work in public and the right to communicate a work to public. These two copyrights together is considered as ‘performing rights’. In Australia, Users wishing to perform or communicate in music in public usually obtain the right to perform the music by taking a non-exclusive blanket licence for the performing rights from APRA. A blanket licence gives the User a performing rights licence in respect of APRA’s entire repertoire.[3] It appears that FPRA in Fiji seeks to do the same.

24. As far as APRA is concerned, the Australian Competition and Consumer Commission (“ACCC”) has given it several short term conditional authorisation to continue its arrangements for the acquisition and licensing of performing rights in music.

25. “Copyright collecting societies are organisations that collect royalties from the use of some forms of copyright works and subject matter. They issue licences to persons or organisations to perform acts comprised in the copyright, collect licence fees from such users and distribute royalty income to the original copyright owner.”

26. The ACCC established a Code of Conduct for Copyright Collecting Societies (the code) in Australia which came into effect in July 2002 and was amended in April 2005. It is a voluntary code of conduct which has been agreed to by each of the major collecting societies: APRA, AMCOS, PPCA, CAL, Screenrights, Viscopy, AWGACS and ASDACS.

27. Each member agency agrees to adhere to standards set out in the code, which govern all aspects of operation including dealings with members and licensees, the distribution of remuneration and licence fees, expenses, governance, accountability, complaints and disputes.”[4]

28. Under the Australian Copyright Act, there is provision for statutory licences and voluntary licences for the use of copyrighted works.

29. For the purposes of this legal opinion, we have compared the provisions relating to voluntary licences with those found in Fiji’s Copyright Act.

30. Similar to Australia, Fiji’s Act also provides for statutory and voluntary licences. As Fiji’s copyright legislation was largely adopted from the Australian legislation, Fiji’s copyright Act currently does not provide terms and conditions for licensing schemes.

31. “ A licensing scheme” under Fiji’s Act means a scheme setting out:

(a)  The classes of cases in which the operator of the scheme or the person on whose behalf the operator acts, is willing to grant a copyright licence; and

(b)  The terms on which a copyright licence would be granted in those classes of cases;

(c)  And for the purpose of this definition “ scheme” includes anything in the nature of a scheme whether described as a scheme or as a tariff or by any other name” 

32. FPRA may in our opinion be entitled to collect licence fees on behalf of their repertoire if the performers are members of its organisation.

33. However, the valid question that arises is whether FPRA is acting honestly and fairly considering that it does not publish its repertoire, identify its members or publish what musical works or sounding recordings are being protected. Of consequence is whether their members continue to exist and more importantly whether the copyright in those protected works has expired?

34. Furthermore, any prospective licensee(s) needs to understand in our opinion, how FPRA classifies venues and determines rates of licence fees.

Difficulties 

35. In Australia, in order to control collecting societies from acting arbitrarily, impartially and dishonestly, ACCC required all collecting societies to subscribe to the Code in order to charge licence fees that were ‘fair and reasonable’. Fiji is yet to develop a ‘Code’ therefore it would be difficult for your entity including those businesses impacted by FPRA’s demand to properly address the issues we have highlighted.

36. Perhaps, the Commerce Commission of Fiji can step in and review the whole process and FPRA’s role so that it may devise ways ( may be through a Code) to ensure:

(i)   FPRA’s dealings with licensees or prospective licensees are transparent

(ii) disclosure by FPRA of all information to the licensees about the licences and its licence scheme

(iii)   that FPRA consults with relevant industries and trade associations on terms and conditions of licence

(iv)    that FPRA charges fair and reasonable licence fee

37. In Fiji (similar to Australia), Licence Schemes (both proposed and existing) may be referred to the Copyright Tribunal for its consideration.[5]

38. Under our Copyright Act, a Copyright Tribunal has the powers to make orders, either confirming or varying the licence scheme that it considers ‘reasonable in the circumstances’ and it can also ensure that there is no unreasonable discrimination between licensees or prospective licensees.[6]

39. A prospective licensee can also apply to the Copyright Tribunal for it to determine an equitable remuneration that should be paid to the copyright owner. [7]

40. However, regrettably, we are informed by the Attorney General’s chambers, that currently no Copyright Tribunal has been set up. It is yet to be seen when this Tribunal will become operative. 

Summary of Opinion: 

(i)            In our view, a live band performing at a hotel or resort will be considered as “public performance” under the Fiji Copyright Act.

(ii)          Therefore a hotel or resort needs to ensure as owner of the premises that it holds a public performance license to play protected or copyrighted music or sound recordings from APRA or any other relevant licensing        body.

(iii)         A hotel or resort as owner of the premises can be cited for infringement if it permits or allows pirated music to be played by or performed to by a live band. This will not apply if the live band plays or performs to its own original musical works. For the former, FPRA seem to offer a range of relevant licenses.

(iv)       For the time being, it appears that FPRA is currently operating a licensing scheme and depending on the extent of its rights under the licensing agreement and coverage of its repertoire, FPRA may have the right to issue legal proceedings where an infringement occurs.

(v)      If a party is aggrieved by the terms or conditions of the licensing scheme, it may refer the matter for determination to the Copyright Tribunal which is by way of a reference, however as discussed above, this Tribunal is currently not functioning in Fiji.

(vi)    Given the current unsatisfactory state of affairs especially no information being available on the scope of FPRA’s repertoire, it is our view that disclosure must be sought from FPRA for them to identify who exactly they represent ( performers), disclose which works ( musical works / sound recordings) they seek to protect and how they calculate licence fees. However if FPRA refuses to provide disclosure or cooperate, there appears to be limited recourse available to the hotels or any other prospective licensees thereafter.

(vii)   If a hotel or resort currently holds a licence with FPRA and ‘public performance’ is covered within their licence, we do not believe FPRA should charge the hotels/resorts separate licensing fees as this would amount to “double dipping’.

(viii) We further recommend all interested parties to make a joint submission to Fiji Commerce Commission to properly raise concerns with regard to payment of licence fees to FPRA.

[1] Copyright (Amendment) Decree 2009

[2] Traditional Fijian cultural dance

[3] Determination by Australian Competition & Consumer Commission on APRA’s application for revocation and substitution of authorisations , 6 June 2014

[4] Copyright licensing and Collecting Societies : A Guide For Copyright Licences, ACCC, November 2006

[5] Part X, Section 141 to Section 147 of the Copyright Act of Fiji

[6] Section 153

[7] Section 163