ARTHUR JOHN MELLOR Vs. AUSTRALIAN BROADCASTING COMMISSION

JUDGEMENT

(1.) This is an appeal from a judgment of Nicholas J. in the Supreme Court of New South Wales in its equitable jurisdiction. By the judgment which was delivered on 10 December 1937, the learned Judge dismissed the action which was brought by the appellants against the respondents and was founded on alleged infringements of copyright in Australia during the years 1932 and 1933. By S. 8, Australian Copyright Act, 1912 (No. 20 of 1912) it is provided that the British Copyright Act (the Copyright Act 1911), should subject to any modifications provided by the Australian Act be in force in the Commonwealth and should be deemed to have been in force therein as from 1 July 1912. So far as affects the action and this appeal no modifications are material. The appellants carry on in partnership a business in England under the name of Wright and Round as publishers of band music, and they were at the material time owners of the sole right of performing in public within the Commonwealth a large number of musical works arranged for performance by brass and military bands. They publish each year a pamphlet described as a "Band Journal" which contains a statement of the terms or prices for purchase of the music of their pieces and long lists of these pieces and of the parts required for their performance by bands and soloists. It may be mentioned that some of the pieces are arrangements of well-known operas and other works and songs, and others are described as being original compositions. The pamphlet or journal also contains certain statements or guarantees as to the performance of the pieces which will be stated later. It will be found that this appeal depends on the meaning and effect of these statements.

(2.) The respondent is a corporation constituted under the Australian Broadcasting Commission Act 1932, and is authorized by law to provide and broadcast throughout the Commonwealth from broadcasting stations known as National Broadcasting Stations adequate and comprehensive programmes and to take in the interests of the community all such measures as in its opinion are conducive to the full development of suitable broadcasting programmes. There is no dispute about the facts. The respondents during the years in question were in the habit of engaging bands to play some of the copyright works of the appellants in studios, or sometimes in other places, with a view to the broadcasting of the performances. The bands or the members of the bands had purchased the pieces on the terms and with the guarantees set out in the appellants' pamphlets or journals. The respondents always approved the programmes of the bands before the performances.

(3.) The actual broadcasts by the bands were effected in the manner now usual in such cases. There was a microphone placed in position to receive the sounds and to transmit them to modulating and amplifying equipment belonging to the respondents in their control room. Thence the sounds were carried by land line to the respondents' transmitting station where after again passing through modulating and amplifying equipment there was a transmission by electromagnetic waves of a specific wavelength which were picked up by receiving sets in different parts of the Commonwealth. It was admitted by counsel for the respondents that there were performances in public of the works in question for which the respondents were responsible if in the circumstances of the case there was no consent by the appellants to such performances. The respondents however maintain that such consent was in fact given by the circulation to bands and band organizations and music sellers throughout the Commonwealth of the annual pamphlets above mentioned. The pamphlets during the years in question contained (with an alteration of date for the year 1933) the following statements: PLEASE NOTE. - All our music is free for Public Performance. To the Bands of the British Empire. Once more it is our privilege to offer you yet another issue, the 58th, without a break of the world-famous Liverpool Journal. All we said of the 1931 Journal has been proved to be true by the record sales of it. Thousands of bands have played it, and have thereby justified our assertion that it would be found to be the goods. . . . The 1932 Journal will be found equal to any of its predecessors. We have chosen it with the greatest care, from an enormous stock of manuscript scores we have selected a Journal which is all good, and balanced to meet the needs of every band. . . .