I'm sorry, I have to rant. Apologies for the nerd-out.
This was published in a 'peer-reviewed' journal in 2002:
"The Moorhouse decision was based on a line of authorities which inferred authorisation in circumstances where the defendant had facilitated the means by which copyright infringement could take place and, having a measure of control over the infringer, failed to take any action to prevent the infringement from taking place. For example, ABC Radio was found to have authorised infringement of copyright in circumstances where it failed to take any action to prevent listeners, who were licensed to play music on their radios in private, from playing their radios in public places and thereby illegally performing musical works in public. The cases have tended to emphasise that the mere provision of facilities is not enough to constitute authorisation, there must be some connection or element of control as between the infringer and the authoriser." [my emphasis, footnotes omitted]
Lionel Docker, 'The Ghost of Moorhouse' (2002) 7 Media and Arts Law Review 113 at 116
Now to me, the author seems to be making the following propositions:
* To authorise infringement you have to
- facilitate the infringement; and
- have some sort of control over the infringer, i.e. be able to stop them infringing
* It implies that [in Mellor v ABC...citation was wrong argh] the ABC has in the past been held liable for authorising infringement in circumstances where it broadcast music [to be played in private] and people played their radios in public. The people playing their radios in public were 'performing the work in public' (infringing copyright), and this was authorised by the ABC - i.e. ABC facilitated it and had the ability to stop it.
What actually happened in that case...
* The ABC was not found liable. (The judge found the copyright owners had given their consent for the music to be performed in public.)
* The ABC did facilitate and 'authorise' the public performance...because in those days you had to be licensed to tune in your receiver to a broadcast. Authorisation "will generally be established by proving that listeners with a licence were entitled to tune in their receivers and thus to perform the musical works in question in public as well as in private." The ABC "did not attempt to limit the general right of the owners of receiving sets to private performances of these pieces; it was probably impracticable so to do."
So yes, the ABC was found to authorise the public performance, but it was pretty clearly in the absence of a power to prevent the performance/control what people did with their radios. (This was before the control test was 'invented', so fair enough?)
...Further in my defence, the second last paragraph of the judgement (which I probably just skipped to the first time I looked at it) says that ABC "have not committed a breach of the appellants' performing rights by "authorizing" the bands to do them." So I think I was entitled to assume I was looking at the wrong case, yes?
"The Moorhouse decision was based on a line of authorities which inferred authorisation in circumstances where the defendant had facilitated the means by which copyright infringement could take place and, having a measure of control over the infringer, failed to take any action to prevent the infringement from taking place. For example, ABC Radio was found to have authorised infringement of copyright in circumstances where it failed to take any action to prevent listeners, who were licensed to play music on their radios in private, from playing their radios in public places and thereby illegally performing musical works in public. The cases have tended to emphasise that the mere provision of facilities is not enough to constitute authorisation, there must be some connection or element of control as between the infringer and the authoriser." [my emphasis, footnotes omitted]
Lionel Docker, 'The Ghost of Moorhouse' (2002) 7 Media and Arts Law Review 113 at 116
Now to me, the author seems to be making the following propositions:
* To authorise infringement you have to
- facilitate the infringement; and
- have some sort of control over the infringer, i.e. be able to stop them infringing
* It implies that [in Mellor v ABC...citation was wrong argh] the ABC has in the past been held liable for authorising infringement in circumstances where it broadcast music [to be played in private] and people played their radios in public. The people playing their radios in public were 'performing the work in public' (infringing copyright), and this was authorised by the ABC - i.e. ABC facilitated it and had the ability to stop it.
What actually happened in that case...
* The ABC was not found liable. (The judge found the copyright owners had given their consent for the music to be performed in public.)
* The ABC did facilitate and 'authorise' the public performance...because in those days you had to be licensed to tune in your receiver to a broadcast. Authorisation "will generally be established by proving that listeners with a licence were entitled to tune in their receivers and thus to perform the musical works in question in public as well as in private." The ABC "did not attempt to limit the general right of the owners of receiving sets to private performances of these pieces; it was probably impracticable so to do."
So yes, the ABC was found to authorise the public performance, but it was pretty clearly in the absence of a power to prevent the performance/control what people did with their radios. (This was before the control test was 'invented', so fair enough?)
...Further in my defence, the second last paragraph of the judgement (which I probably just skipped to the first time I looked at it) says that ABC "have not committed a breach of the appellants' performing rights by "authorizing" the bands to do them." So I think I was entitled to assume I was looking at the wrong case, yes?