TELSTRA CORPORATION LTD v AUSTRALASIAN PERFORMING RIGHT ASSOCIATION LTD

Judges: Dawson, Gaudron
Toohey
McHugh

Kirby JJ

Subject References:
COPYRIGHT
Exclusive rights
Infringement
Musical and literary works
Provision of music to telephone callers placed on hold
Callers using conventional telephones
Diffusion right
Whether Telstra caused works to be transmitted to subscribers to a diffusion service
Callers using mobile telephones
Broadcast right
Whether Telstra broadcast works.

Other References:
Copyright Act 1968 (Cth), ss 10(1), 26, 31(1)(a)(iv), 31(1)(a)(v), 199(4).

Judgment date: 14 AUGUST 1997

Judgment by:
Kirby J

This appeal from a decision of the Full Court of the Federal Court of Australia ^[F44] , concerns music provided to telephone users who are placed on hold ("music on hold"). The question is whether, under the Copyright Act 1968 (Cth) ("the Act"), provision of such music may constitute a breach of copyright in the musical works used for that purpose.

In April 1993, the Australasian Performing Right Association Limited ("APRA") commenced proceedings in the Federal Court against Telstra Corporation Limited ("Telstra") which, at the time, traded under the name "Telecom" ^[F45] . APRA was the owner of copyright in certain literary and musical works which are the subject of this litigation ("the works"). Telstra was the holder of a general telecommunications licence under the Telecommunications Act 1991 (Cth). APRA sought declaratory and injunctive relief to restrain Telstra from performing, or authorising the performance of, the works in public; broadcasting them; or transmitting them to subscribers to a Telstra telecommunications service. APRA also sought to restrain Telstra from authorising, or permitting, any person to connect the works to the Telstra telecommunications network through equipment capable of transmitting the works to Telstra's subscribers.

At first instance in the Federal Court, Gummow J held that none of the activities challenged by APRA amounted to an infringement of APRA's copyright. His Honour dismissed the application ^[F46] . The appeal to the Full Court of the Federal Court was allowed ^[F47] . In this Court, Telstra challenges the construction of the Act adopted by the Full Court.

Different sources and kinds of music on hold

The detailed technical information describing the operation of the telephone system, as used to play music on hold, is contained in the reasons of Gummow J ^[F48] . Only a few of these technical details are important for the resolution of the issues before this Court. At the relevant times Telstra participated in the provision of music on hold in three ways:

1.

When calls made to Telstra service centres were placed on hold. The music at such centres was supplied by a machine at the service centre playing recorded music to the waiting caller.

2.

Telstra also facilitated the transmission of music on hold through telephone systems with the capacity to play such music to callers who could not be attended to immediately. A music source, such as a radio broadcast transmitter or a compact disc player, could be connected to such systems. In such a case, it was the transmission facility, and not the music, which was provided by Telstra. Until shortly before the hearing at first instance, Telstra was the only general carrier of telecommunications in Australia. As such, it was then the sole owner and operator of the telecommunications network through which music on hold was provided ^[F49] .

3.

Finally, such music was provided by a service known as CustomNet. When a person telephoned another who was a subscriber to CustomNet and the subscriber's telephone was engaged, the electromagnetic current carrying the call was diverted to the music on hold facility at the Telstra exchange nearest to the subscriber, until the subscriber's telephone line became available. Under the CustomNet system, the electromagnetic current carrying music on hold did not pass to the premises of the subscriber and thence to the caller. It moved directly from the Telstra exchange to the caller.

In each of the foregoing forms of music on hold, the music might either be pre-recorded music, derived from a compact disc player or tape recorder, or music and words broadcast from a radio station transmitting to the general public.

The technical evidence accepted by Gummow J establishes that telephone calls are transmitted in two ways. Most are transmitted by way of the telephone lines, or as expressed in s 26(1) of the Act, "over wires, or over other paths provided by a material substance". However, this is not so with calls to and from mobile telephones. They are transmitted by radio signals. Each mobile telephone has a radio transmitter and receiver which allow it to communicate with the nearest base station connecting its radio transmissions to the rest of the telephone network. In receiving signals from a base station, a mobile telephone operates in a way similar to an FM radio receiver. The telephone does not have its own set frequency dedicated to it. When a user makes a call from a mobile telephone, it communicates with the nearest base station seeking a frequency allocation. This request is then sent to the nearest telephone exchange. It allocates frequencies for transmission and reception. The telephone switches to those frequencies and commences the connection.

The present proceedings therefore concern several forms of music on hold, based upon combinations of the elements of the systems described above ^[F50] :

(1)

music on hold played to callers who telephone Telstra's own service centres;

(2)

music on hold played to callers who telephone subscribers to CustomNet;

(3)

pre-recorded music on hold played to callers who telephone organisations which provide music themselves or who have acquired the facilities to provide a music source from a supplier other than Telstra. In this case, Telstra transmits the music on hold, but does not provide it;

(4)

broadcast music on hold played under the circumstances described in par (3); and

(5)

recorded or broadcast music played to callers using mobile telephones in the circumstances described in pars (1) to (4).

Relevant provisions of the Act

APRA brought its proceedings on the basis of a claim that the activities described above, and all of them, constituted an infringement of its copyright in the works in question. Such copyright is conferred by s 31 of the Act. That section provides, relevantly:

"(1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

(a)

in the case of a literary, dramatic or musical work, to do all or any of the following acts:

...

(iii)

to perform the work in public;

(iv)

to broadcast the work;

(v)

to cause the work to be transmitted to subscribers to a diffusion service;

..."

Section 10(1) of the Act defines the word "broadcast" to mean "transmit by wireless telegraphy to the public". The same section defines "wireless telegraphy" as "the emitting or receiving, otherwise than over a path that is provided by a material substance, of electromagnetic energy".

Further indications of the meaning of "broadcast" are to be found in other provisions of the Act. Section 25(1) states:

"A reference in this Act to broadcasting shall, unless the contrary intention appears, be read as a reference to broadcasting whether by way of sound broadcasting or of television."

Section 22(5) provides, relevantly:

"For the purposes of this Act, a ... sound broadcast shall ... be deemed to have been made by the person by whom, at the time when, and from the place from which, the ... sounds constituting the broadcast ... were broadcast."

The meaning of "sound broadcast" is, by s 10(1) of the Act, "sounds broadcast otherwise than as part of a television broadcast".

Section 26 is critical. It contains detailed provisions concerning the meaning of "diffusion service", as contemplated by s 31(1)(a)(v). The section and s 199(4), which is also important, are set out in the reasons of Dawson and Gaudron JJ. I will not repeat them.

Common grounds for a test case

In order to isolate the issues relevant to the appeal, it is useful to identify several matters which are not the subject of dispute:

1.

The proceedings were brought by APRA as a test case. Indeed, APRA and Telstra have cooperated in the litigation, which nonetheless presents a real legal controversy for decision ^[F51] . The factual context for the litigation was, for this reason, uncontentious. The subject of the music on hold in dispute comprised six literary and six musical works, set out in the statement of claim. Nothing turns on the identification of the particular works. It was agreed that evidence that such works were used as music on hold was sufficient to support the test case on the legal issues applicable to all music on hold.

2.

There was no issue about the legality of the transmission of music on hold by way of the telecommunications network, other than the question whether such transmission constituted a breach of APRA's copyright. Telecom was at all material times, as Telstra still is, the holder of a general telecommunications licence, issued on 25 November 1991 under the Telecommunications Act . Most of Australia's telecommunications network is supplied, maintained and owned by Telstra ^[F52] .

3.

In the Federal Court, the parties pressed submissions concerning the effect of s 199(4) of the Act, in cases where the source of the music on hold was a radio broadcast transmitted through a diffusion service to waiting callers who had been placed on hold. Those submissions were not repeated in this Court. Consideration of the effect of s 199(4) is therefore limited.

4.

At first instance, APRA contended that the activities described above fell within the scope of the right "to perform the work in public" contained in s 31(1)(a)(iii) of the Act ^[F53] . However, this contention was not pressed in the Full Court of the Federal Court ^[F54] or in this Court. The point need not be considered.

The remaining issues in the appeal can be simply stated. APRA contends that Telstra has infringed its copyright by the provision of music on hold in the following ways:

1.

By playing its own music on hold to callers who telephone Telstra service centres by transmitting music on hold played by third parties, or by playing music on hold to callers who telephone subscribers to CustomNet, Telstra has "cause[d] the work to be transmitted to subscribers to a diffusion service" under s 31(1)(a)(v) of the Act ("The diffusion right issue"); and

2.

By playing or transmitting recorded or broadcast music on hold to callers using mobile telephones either directly or via the CustomNet service, Telstra has "broadcast the work" within the meaning of s 31(1)(a)(iv) of the Act ("The broadcast right issue").

Proceedings in the Federal Court of Australia

(1) The diffusion right issue:

At first instance, Gummow J held that none of Telstra's actions in playing or transmitting music on hold could be considered to have "cause[d] the work to be transmitted to subscribers to a diffusion service", within the meaning of s 31 (1)(a)(v) ^[F55] . His Honour concluded that the transmission of music on hold was the transmission of the work "over wires, or over other paths provided by a material substance", as required by s 26(1) of the Act ^[F56] . However, he did not consider that such transmission was undertaken "in the course of a service of distributing broadcast or other matter ... to the premises of subscribers to the service" ^[F57] . He pointed to the fact that music on hold was not provided for the benefit of the listener, but was a service benefiting, if anyone, the transmitter of the music ^[F58] :

"Although this might conceivably be viewed as a service to the latter class of persons, subs (1) requires transmission to the premises of subscribers to the service."

Noting that the ordinary meaning of the word "distribute" was to "spread or disburse", and that "[a] central feature of any distribution is a uni-directional flow of something from one to more than one", Gummow J also concluded that a service with the primary function of facilitating communication between two people could not properly be described as "distributing" a service ^[F59] .

Even if the provision of music on hold was properly to be regarded as satisfying the requirements of s 26(1), Gummow J emphasised the lack of any "agreements with subscribers to the service" under which Telstra "undertakes to provide them with the service" ^[F60] . His Honour's conclusions on the diffusion right issue applied equally to the transmission of recorded or radio broadcast music ^[F61] .

By majority ^[F62] , the Full Court of the Federal Court allowed the appeal by APRA on the diffusion right issue. Black CJ and Burchett J rejected Gummow J's finding that the transmission of music on hold had not been undertaken "in the course of a service of distributing" the work to subscribers to the service. While the service of music on hold was undoubtedly for the benefit of persons calling the subscriber, "[w]hat is provided is still a service even if it is not sought or appreciated by members of a class to which it is intended to appeal" ^[F63] .

Black CJ and Burchett J also considered that the provision of music on hold was a service of "distributing" the work. It was distributed to "everyone within the class of people who are intended to hear it" ^[F64] . There may be many people calling the same number at the same time, all hearing the same work from the same source. The disbursement from a common source was crucial. The fact that a separate electromagnetic current flowed to each caller did not deprive the service of its distributive character. Their Honours found support in s 26(5) of the Act, which recognises that a service of "distributing" matter can be "part of" a service to which there are subscribers ^[F65] . This appeared to be an express negation of the argument that the person to person nature of telephone communication, and the inherent limitations placed on the capacity to distribute music on hold, prevented such communication of music on hold from constituting "a service of distributing" matter for the purposes of s 26(1) of the Act.

For Black CJ, the critical point was whether the provision of music on hold could be said to be distributed "to the premises of subscribers to the service", as required by s 26(1). The answer to this question depended upon the construction of s 26(5) of the Act, which his Honour saw as operating to define the requisite "subscribers" ^[F66] . He concluded that the provision of music on hold was a service "incidental to" the telephone service, within the terms of s 26(5) ^[F67] :

"But incidental to the telephone service, and only incidental to it, there will be the service, appreciated no doubt by some and perhaps the source of annoyance to others, of music being played for the caller if the call cannot be attended to immediately."

In such a case, s 26(5) provided that a subscriber to the telephone service is to be taken, for the purposes of s 26(1), to be a subscriber to the distribution service. No actual subscription to the incidental service was required. When s 26(5) was viewed in this way, there was no need for any "agreements" between Telstra and subscribers to provide the service of music on hold, under s 26(4). The "agreements" needed only to provide for the telephone service. The same analysis was adopted by Burchett J ^[F68] :

"If a subscriber to one service is required, by the statute, to be 'taken, for the purposes of this section, to be' a subscriber to the other, it must also be taken that the agreement to provide him with the one service covers the other."

Both Black CJ and Burchett J distinguished between the situation where the source of the music on hold was a radio broadcast as opposed to the provision of recorded music. Where the music on hold was a radio broadcast, s 199(4) of the Act operated to treat the person who caused the work to be transmitted to subscribers as if he or she had been the holder of a licence granted by the owner of a copyright ^[F69] .

In dissent on the diffusion right issue, Sheppard J recognised the possible injustice to APRA of the result which flowed from his interpretation of the Act ^[F70] . However, his Honour preferred the construction of s 26 favoured by Gummow J. In his view, the language of that section was not apt to deal with cases presented by the development of the new technology of music on hold ^[F71] . This was a defect which the Judges could not repair. Sheppard J was particularly critical of the reliance placed by the majority on the effect of s 26(5) ^[F72] :

"Much was made of s 26(5) but ... it cannot control the whole meaning of the section nor be read so as to confer rights which are not to be found even incidentally in the provisions of s 31, which, after all, is the provision which confers the right, or in the remaining provisions of s 26."

Sheppard J, like Gummow J, also rested his opinion on this issue upon the legislative history of ss 31 and 26 ^[F73] . Taking into account the purpose of the provisions in the equivalent English legislation ^[F74] , and the way in which they had come to be mirrored in the Act, Sheppard J considered that it was:

"very difficult to impute to those responsible for the drafting of s 26 an intention to provide for a situation such as that contended for by APRA here" ^[F75] .

Any injustice required a legislative rather than a judicial response ^[F76] .

(2) The broadcast right issue:

On the second issue, Gummow J found that transmissions to mobile telephones by the base stations, involving as they did the emission of electromagnetic energy, clearly constituted a transmission "by wireless telegraphy" within the definition of "broadcast" in s 10(1) of the Act ^[F77] . However, whether the transmission of music on hold to an individual mobile telephone caller could be said to be transmission "to the public", was more problematical. His Honour reviewed the legislative history of the definition of "broadcast" in the Act. He considered the available authorities on the proper construction of "public" as that word appears in various provisions of the Act and similar legislation in other jurisdictions ^[F78] . He emphasised that the words "to the public" depended for their meaning not upon the number of recipients of the transmission but upon its essential character ^[F79] . The operation of the mobile telephone system was designed to ensure privacy and confidentiality of each transmission. There were also statutory prohibitions on the interception of communications passing through the telecommunications system ^[F80] . These considerations led Gummow J to conclude that it would be

"distorting the language of the broadcasting provisions to hold that if during the course of this private communication one party was to communicate a work to the other party, this amounts to a broadcast by [Telstra] to the public" ^[F81] .

This conclusion would hold equally if Telstra itself were playing the music, as well as merely transmitting it, to mobile telephones ^[F82] . The provision of s 22(5) focused on the point in space and time at which the electromagnetic energy was transmitted. The playing of music on hold by Telstra would not alter the circumstance that the transmission itself was not "to the public", and was not, therefore, a "broadcast".

All members of the Full Court disagreed with Gummow J's conclusions on this point. They found that, by playing or transmitting recorded or broadcast music on hold to callers using mobile telephones, Telstra had "broadcast the work" within the meaning of s 31(1)(a)(iv) of the Act. The reasoning of all three Judges rested upon a construction of the words "to the public". Their Honours rejected the contention that the fact that the transmission of music on hold was private, and directed to individuals, as such, prevented it from being made "to the public".

Sheppard J agreed with the primary Judge's characterisation of telephone communications as "private affairs" ^[F83] . However, in his view this did not prevent them from being "to the public" any more than the fact that most listeners to radio will do so in the privacy of their own homes or cars. The determining factor was not the privacy of telephone communication (which was a given), but the nature of the use of the copyright material ^[F84] . His Honour saw no significant distinction between the words "to the public" in the definition of "broadcast" in s 10 and the term "in public" in s 31(1)(a)(iii) of the Act and similar provisions, as interpreted by court decisions ^[F85] . The cases cited identified the relevant "public" as being "the copyright owner's public", particularly where the performance of the work in question occurred as an adjunct to a commercial activity. The size of the particular "public" was irrelevant.

Burchett J agreed that it was the relationship of the audience to the owner of the copyright in question which was of prime importance ^[F86] , and not the size of the audience. Black CJ agreed in the reasons and conclusions of the other members of the Full Court on this point ^[F87] . Accordingly, the Court unanimously allowed the appeal on the broadcast right issue.

Matters of approach

In this Court, Telstra propounded two arguments critical to the general approach of the Federal Court.

First, Telstra argued that the Full Court had erred in concluding that Telstra was liable for copyright infringement, in transmitting music on hold in its capacity as a general carrier of telecommunications. The fact that Telstra did not initiate or control the contents of those communications was said to be crucial. Even in the case of CustomNet, Telstra would often have no control of the content of the transmission. The Act could never have intended to impose upon an operator of a telecommunications network, in effect, strict liability for any copyright infringement, with the result that customers could transmit copyright information to each other and thereby render Telstra liable for the breach, although it had no way of knowing that such a breach had occurred and no chance of preventing it from happening.

Secondly, Telstra argued that the Full Court was incorrect in disregarding the fact that persons listening to music on hold had no necessary desire or intention to do so. In making a telephone call, a caller would rarely, if ever, seek to hear either the particular music played, or even music generally. A call would invariably be made for a different purpose, namely communicating with a person for a business or personal reason. So far as callers were concerned, there would be no possible cause for complaint if they made a telephone call and did not hear any music on hold. Telstra emphasised that this factual distinction between the case of music on hold, and the cases relied upon by the Full Court, involving an element of consensus between the audience and the music provider, was a significant one.

On the other hand, APRA formulated its case on the basis that the diffusion and broadcast rights in the Act had their genesis in, and were elements of, the right of "public communication" guaranteed by the Berne Convention for the Protection of Literary and Artistic Works 1886 ("the Convention") ^[F88] . APRA submitted that the Convention was the primary guide to the ascertainment of the meaning of the phrase "transmitted to subscribers to a diffusion service" ^[F89] . The legislative history of the Act demonstrated that it intended that a copyright owner should, consistently with revisions of the Convention, enjoy the broad right to communicate its work to the public. Subject to limited exceptions (such as s 199(4)), the relevant rights in s 31(1)(a) of the Act were intended to be co-extensive. In particular, no significant distinction was contemplated by the Convention between the right to broadcast (s 31(1)(a)(iv)) and the right to transmit to subscribers to a diffusion service (s 31(1)(a)(v)). Thus, in APRA's submission, the words of those provisions should not be given the narrow construction which Telstra attached to them. The overriding intention of the Act, as of the Convention, was that the copyright owner should receive broad protection.

The meaning of the legislation under scrutiny in this appeal is not absolutely clear. The primary duty of a court in such a case is to give effect to the imputed will of the Parliament as expressed in the legislation. But where that will is ambiguous it is relevant to elucidate pertinent considerations of legal principle or legal policy. The importance of the competing policy considerations was recognised by the Full Court ^[F90] . The law of copyright is concerned with balancing the public interest in economic and cultural development against the interests of individuals in securing a fair and equitable return for their intellectual efforts ^[F91] . The potential liability of a telecommunications carrier for infringement of copyright, promoted through its network, is a matter of considerable public importance. The potential financial consequences of the decision in this case for telecommunications carriers (and therefore for the customers who may ultimately bear the costs of such potential liability) are considerable. The impact of a decision imposing liability on a telecommunications carrier may, in time, be heavier still, given the increasing integration of transmission technologies and the resulting technological blurring of the boundaries between the roles of carriers and content-providers ^[F92] . Such considerations led Sheppard J to the conclusion that a legislative rather than a judicial response to the suggested injustice of denying copyright protection to the owner for the use of its work in a diffusion service was what was called for ^[F93] . I agree that in this area, where the interests are large, and the rights are ultimately derived from the language of an international treaty of national as well as global importance, judicial restraint is called for where an Act is obscure or arguably inapplicable.

However, the determination of whether the playing or transmission of music on hold by Telstra through its telecommunications network constitutes an infringement of the exclusive rights described by s 31(1)(a) of the Act ultimately involves the construction of an Act of the Australian Parliament. A court must seek to ascertain the purposes of the Parliament as expressed in the language which it has used in the legislation ^[F94] . It may consider the purposes of the Act to determine whether more than one construction is available. So far as possible, it should adopt the construction which best promotes those purposes. The comment of Dawson J in Mills v. Meeking is in point ^[F95] :

"[I]f the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman."

A court must give effect to the clear meaning of a statute even where the result seems anomalous or unfair ^[F96] . The potential consequences of assigning a particular interpretation to a provision may be taken into account in seeking the purpose of the Parliament. However, this will only be one factor among many to be considered ^[F97] :

"If the choice is between two strongly competing interpretations ... the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

With these familiar rules of statutory construction in mind I approach the task presented by the appeal.

The diffusion right issue

Whether the provision of music on hold involves an infringement by Telstra of the exclusive right of APRA to "cause the work to be transmitted to subscribers to a diffusion service" necessitates, ultimately, an elucidation of s 26 of the Act. That section identifies the three relevant elements of that exclusive right: the "diffusion service"; the "subscribers" to the service; and the persons who "cause the work to be transmitted". Let me deal with each of these elements in turn:

(1) Music on hold is a "diffusion service": Section 26(1) requires that, for there to be a "diffusion service", there must be a "service of distributing broadcast or other matter". To succeed, APRA was therefore obliged to demonstrate that the transmission of music on hold by Telstra (1) constituted a "service" and (2) amounted to the act of "distributing" the works.

Telstra submitted that as defined in s 26(1), a "diffusion service" was a service to the recipients of the matter, not to the senders. Subscribers to such a service are persons who subscribe to receive the matter, not to send it. According to s 26(4), there must also exist agreements with the subscribers that they will receive the service. These conditions were not satisfied in the present case.

It is true that callers obliged to listen to music on hold do not explicitly seek, or necessarily want, to hear the music. The real purpose of their call is, at least initially, unrelated. Music on hold may even frustrate or annoy them. They have no means of preventing the provision of the particular music or of altering its content. Some might prefer silence so that, while waiting, they can get on with work, reading, or doing other things. They might, if they could choose, select ancient music by long deceased performers to which no copyright attaches, rather than the kind of modern music described in the evidence, for which copyright was fresh and protected by APRA.

However, the word "service", in its ordinary use, involves no notion of the desirability or congeniality of the thing provided. Otherwise, the occasional reception of nuisance calls or unwanted calls from unloved relatives or persistent creditors over the telephone might render the provision of the telephone facility no longer a "service". From the fact that the market has led in recent years to the proliferation of music on hold services, it may be inferred that many, perhaps most, callers are thought to prefer music to the frustrations of silence. It seems reasonable to infer from the growth of such facilities, in Australia as elsewhere, that market research or business estimates have convinced those who pay for them that providing them is in their economic, social or other interests. I agree with the comments of Black CJ on this point ^[F98] :

"[T]he service, whether provided directly by the trader itself or by a third party, is provided for the benefit of the trader's customers. It is the perceived benefit to the customers that makes the provision of the service of benefit to the trader."

To constitute a "service" there would be no need for the music to be provided as an independent and distinct commercial operation . Sections 26(3) and 26(5) of the Act both assume that an activity "only incidental to" certain commercial operations may constitute a "service". This suggests that the word was intended to be given a broad interpretation encompassing activities incidental to more general services, such as "a business of keeping or letting premises" (s 26(3)) or "a service of transmitting telegraphic or telephonic communications" (s 26(5)).

It is also clear that, by transmitting music on hold, Telstra was "distributing" the works, despite the fact that they were played to individuals through individual telephone connections and, depending upon the number of simultaneous callers, only one person would ordinarily hear the same work at the same time from the same subscriber's handpiece. The Macquarie Dictionary defines "distribute" as "to divide and bestow in shares; deal out; allot ... to disperse through a space or over an area; spread; scatter". As Gummow J pointed out, "[a] central feature of any distribution is a uni- directional flow of something from one to more than one" ^[F99] . While it is indeed difficult to see how a service facilitating communication between two people could fulfil such a requirement, this is not the "service" to which s 26(1) of the Act refers. The relevant "service" is the entire "service of distributing broadcast or other matter ... to the premises of subscribers to the service". It is not, as such, the facilitation of the individual transmissions from one telephone to another. The terms of s 26(1) are wide enough to include a process consisting of the dissemination of various musical works to different people at multiple premises via the Telstra network. Over time, works emanating from a particular source are carried to everyone within the class of persons intended to hear them, that is, the callers to a particular number. No element of simultaneity is necessary, any more than in the distribution of a publication or of presents at the festive season. When properly characterised in this way, the "service" is undoubtedly one of "distributing" matter.

In support of the foregoing conclusion, it is worth noticing s 26(5) of the Act. This sub-section clearly contemplates that the inherent individual to individual nature of telephone communication will not disqualify it from constituting a "service" of the relevant kind. It does this by including "a service of distributing matter" which is only "part of" the broader telephonic service, within the scope of s 26(1).

Nothing turns on the fact that s 26(1) equates transmission "to subscribers" with distribution to "the premises of subscribers" ^[F100] . This requirement merely makes s 26(1) workable by recognising that, inherent in the operation of the telephone network, is the provision of the service to a person's premises rather than to an actual person. Otherwise, liability would depend upon the identity of the person using the service within the premises.

The transmission of music on hold by Telstra therefore constitutes a "diffusion service" within the meaning of s 31(1)(a)(v) of the Act. The Full Court was correct in so deciding.

(2) The "subscribers" to the service: To fall within the definition of the diffusion rights contained in s 26(1), music on hold must be distributed "over wires, or over other paths provided by a material substance, to the premises of subscribers to the service". It is common ground that the first half of this provision, describing the mode of carriage of the transmissions, is satisfied. However, unless APRA can demonstrate that the music on hold is distributed "to the premises of subscribers to the service", the appeal must be upheld on the diffusion right issue. The difficulty here is obvious. It is the caller, and not the subscriber to the music on hold service, who receives the music. For technical reasons, the music never reaches the premises of the person who is providing the music on hold. By definition that person is busy, occasioning the need to "hold".

APRA did not dispute this difficulty. It argued that the "subscribers to the service" were subscribers to the telephonic communications service, which did include the callers receiving the music on hold. It relied on a particular construction of the effect of s 26(5) of the Act. That sub-section is concerned with the situation where a service referred to in sub-s (1) is "only incidental to, or part of, a service of transmitting ... telephonic communications ...". In such cases, sub-s (5) deems that "a subscriber to the last-mentioned service shall be taken, for the purposes of this section, to be a subscriber to the first- mentioned service".

APRA also submitted that the effect of s 26(5), as found by Black CJ and Burchett J in the Full Court, was correct. Telstra had contracted to provide its subscribers with a service of transmitting telephonic communications. Either as "part of", or "incidental to", that service Telstra transmitted music on hold from the premises of the subscribers to the premises of other subscribers. The service in question was therefore neither unsought nor unwanted, or wanted only by the transmitter. By virtue of s 26(5) of the Act, subscribers contracted, inter alia, to receive music on hold as a service incidental to the service to which they have agreed to subscribe. It was not necessary to identify a distinct service of distributing matter. It was argued that it would accord with a natural use of language to say that Telstra provided a service of transmitting data, facsimiles and music on hold as part of its telephone service.

APRA finally submitted that under s 26(2)(a) of the Act, Telstra was deemed to be causing the work to be transmitted. This was because it was an "operating service" within the terms of s 26(4).

Telstra contested these arguments. It submitted that s 26(5) of the Act could not operate so as to import into the word "subscriber" the meaning of subscribers to the telecommunications service. The Full Court had erred in finding that it had such effect. Rather, s 26(5) was inserted to deal with a case in which there was a general telecommunications network to which one could subscribe, but also a secondary service of providing music if the subscriber chose also to receive it. In the case of such a combined service, s 26(5) made it clear that two separate agreements were not required for s 26(4) to be satisfied. A single agreement was sufficient. In Telstra's submission, s 26(5) was not intended to control the entire operation of s 26.

Black CJ was clearly right to say that "the outcome of the appeal in respect of the diffusion right turns on s 26(5)" ^[F101] . It was so in the Full Court. So it has emerged in this Court.

If one attempts to construe the provisions of s 26(5) in isolation, the analysis of the provision favoured by Gummow J and by Sheppard J has a measure of plausibility. Their analysis was that sub- section (5) "cannot ... be read so as to confer rights which are not to be found even incidentally in the provisions of s 31" ^[F102] . However, with respect to their Honours, this approach involves construing s 26, the purpose of which is to elaborate s 31 with some detail, by reference to a preconceived notion of the intended scope of s 31 itself. The duty of ascertaining the meaning of the legislation requires that s 26(5) be considered in the context of s 26 as a whole, and against the broader purposes of the Act ^[F103] . Undertaking such an exercise, the construction of s 26(5) which the majority in the Full Court favoured appears to me to be the preferable one. My reasons are as follows:

1.

On their face, the words of s 26(5) appear unambiguously to intend the sub-section to control the operation of the term "subscribers" as it is repeated in the rest of the section. Thus, sub-section (5) is expressed to apply "for the purposes of this section". It is not expressed to be limited in its operation to particular sub-sections.

2.

If the contrary construction of s 26(5) were adopted, the provision would not have a practical effect or operation. So much was virtually acknowledged by Telstra. The requirement that a court should endeavour to give effect to every provision of an Act ^[F104] demands that, where one interpretation would render a section ineffectual, while another would offer it a sphere of operation, the latter is to be preferred.

3.

The Act was enacted in terms which permitted Australia to subscribe to the Convention. Australia became bound by the Brussels Act 1948 on 1 June 1969. It is well established doctrine in this country that, in cases of ambiguity, courts will favour a construction of an Australian statute which accords with the international obligations of Australia under a treaty which it has ratified, over an interpretation which is inconsistent with the obligation ^[F105] .

The Convention intended to provide copyright owners with a broad right to communicate their works to the public, and to afford them protection against others who usurped or invaded that right. Article 11(1) of the Brussels Act 1948 provided, inter alia, that the authors of musical or dramatic works should enjoy the exclusive right to authorise:

"(i)

the public presentation and public performance of their works; and

(ii)

the public distribution by any means of the presentation and performance of their works."

Article 11 bis provided, relevantly, that authors of literary and artistic works were to have the exclusive right of authorising:

"(i)

the radio-diffusion of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;

(ii)

any communication to the public, whether over wires or not, of the radio-diffusion of the work, when this communication is made by a body other than the original one;

(iii)

the communication to the public by loudspeaker or any other similar instrument transmitting, by signs, sounds or images, the radio-diffusion of the work."

Professor Ricketson ^[F106] notes that the origins of the diffusion right in the above provisions may be traced to the particular concern of those preparing the Convention for breach of copyright through the technology of the "theatrephone". This was a device for transmission, by adaptation of the ordinary telephone, of everything audible upon the stage of a theatre ^[F107] .

In the United Kingdom, the Copyright Act 1956 (UK) was enacted following recommendations of the Gregory Committee ^[F108] as to changes to copyright law necessary to take into account technical developments and the Brussels Act 1948. In Australia, the Spicer Committee ^[F109] was appointed to advise the Federal Government on which of the 1956 amendments to the United Kingdom Act should be incorporated into Australian law. The Committee recommended that provisions similar to ss 2(5) and 48(1) of the Copyright Act 1956 (UK), be adopted ^[F110] . It is not necessary to set out those provisions. It is sufficient to note that the former sub-section was adopted as s 31(1)(a)(v) of the Act, while the latter, with a few minor drafting alterations, formed the basis of s 26 of the Australian Act.

The purpose of implementing the provisions of the Convention was acknowledged by the Attorney-General (Mr N H Bowen) in his Second Reading Speech on the Copyright Bill 1967 (Cth) ^[F111] :

"The changes proposed by the Bill will enable Australia to become a party to two international agreements on copyright. These are, firstly, the Brussels revision in 1948 of the Berne Convention for the Protection of Literary and Artistic Works ..."

Clause 30, the predecessor to s 31, is described in terms which make plain the intention of a broad level of protection ^[F112] :

"In respect of literary, dramatic and musical works, the copyright owner is given exclusive rights of reproduction, publication, public performance, broadcasting and communication of the works to subscribers to a diffusion service ..."

Following changes made to the Convention by the Stockholm Act 1967, the Copyright Bill 1967 (Cth) was further revised. In the Second Reading Speech on the Copyright Bill 1968 (Cth), the intention that the Act should reflect the broad protection offered by the Convention was reinforced ^[F113] :

"Those further changes in our copyright law which would be required to give effect to the Stockholm Revision have been incorporated in this Bill."

Articles 11 and 11 bis of the Brussels Act 1948 were reformulated by the Stockholm Act 1967, the substantive provisions of which Australia never ratified. However, Article 11(1) of the Stockholm Act was reproduced in the same terms as Article 11(1) of the Paris Act 1971. Australia became bound by this on 1 March 1978. Article 11(1) of the Paris Act provides that authors of dramatic and musical works shall enjoy the exclusive right of authorising:

"(i)

the public performance of their works, including such public performance by any means or process;

(ii)

any communication to the public of the performance of their works."

The legislative history of ss 31(1)(a)(v) and 26 of the Act therefore suggests a purpose of providing the very broad protection envisaged by the successive forms of Article 11 of the Convention. It is unnecessary to comment on APRA's submission that the rights contained in s 31(1) are intended, consistent with the Convention, to be co-extensive. It is sufficient to say that it would be inconsistent with the wide terms of the Convention and its successive amendments, to adopt an unduly narrow construction of s 26(5) of the Act, particularly where the clear language of that sub-section by no means requires that course.

4.

It is true that s 26 of the Act originated at a time when the specific technology of music on hold did not exist and may not even have been contemplated. This does not mean that the terms of the legislative provision, properly construed, may not extend to new technological forms of a "diffusion service" as they are developed. In certain circumstances, general language, originally designed to apply to an earlier technology, may apply to supervening technology ^[F114] . I agree with what was said in Jerome H Remick & Co v. American Automobile Accessories Co ^[F115] :

"While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries."

It has already been noted that the original concept of diffusion rights in the Brussels Act of the Convention may have derived, historically, from concern about the long forgotten theatrephone ^[F116] . It was argued that the diffusion right, as it appeared in the Act in 1968, was intended principally to deal with the technology of diffusion of television broadcasts and the re-transmission of free to air broadcast material along a cable from an area receiving antennae to remote areas where the broadcasts themselves could not otherwise be received ^[F117] . However, if the diffusion right had been intended to be limited to such technology, the Act would have reflected that purpose by a far more specific and limited definition of "diffusion service" than appears in s 26. As the diffusion rights provisions go beyond such a purpose, their application to music on hold can be said to be fairly within the scope of the statute ^[F118] . The technological innovation giving rise to music on hold was hardly a dramatic one. Further, the legislature obviously contemplated the then impending development of cable technology which would initiate the distribution of programmes as well as merely redistributing earlier broadcast material ^[F119] . There is thus nothing in the legislative history of the diffusion right to suggest that its operation was intended to be limited to the particular technological circumstances prevailing at the time the Act was enacted. The language used does not support that conclusion. It should be rejected.

The effect of s 26(5) of the Act is to deem that subscribers to Telstra's telecommunications service are to be taken, for the purposes of s 26(1), to be subscribers to the service of music on hold which is "incidental to, or part of" the telecommunications service. In this way, Telstra transmits music on hold "to the premises of subscribers to the service" within the terms of s 26(1). The Full Court was correct to so decide.

(3) Telstra "cause[s] the work to be transmitted": Paragraph 26(2)(a) of the Act deems "the person causing the work ... to be so transmitted" to be "the person operating the service". Sub-section 26(4) then requires that the "person operating a service" shall be read as a reference to "the person who, in the agreements with subscribers to the service, undertakes to provide them with the service". The suggested difficulty for APRA was the same as that faced in relation to s 26(1). If the "subscribers to the service" referred to in s 26(4) of the Act were subscribers to the service of music on hold, then no "agreements" with such subscribers to provide such a service to them are identifiable. Music on hold would fall outside the terms of the Act.

The answer to this suggested problem lies in the analysis of s 26(5) offered above. That sub-section removes the need for an agreement containing undertakings by Telstra to provide music on hold. It is enough that music on hold should be "incidental to, or part of" the telecommunications service provided by Telstra. All that is required is an agreement containing an undertaking to provide the latter service to a subscriber for there to be deemed an agreement under which it is undertaken that the former service shall be provided. This conclusion was expressed concisely by Burchett J in the Full Court, in terms which I would accept ^[F120] :

"If a subscriber to one service is required, by the statute, to be 'taken, for the purposes of this section, to be' a subscriber to the other, it must also be taken that the agreement to provide him with the one service covers the other."

It follows that Telstra, in transmitting music on hold, infringed APRA's exclusive right "to cause the work to be transmitted to subscribers to a diffusion service", within the terms of s 31(1)(a)(v) of the Act. The majority of the Full Court correctly so decided. The appeal against their decision should be rejected.

The broadcast right issue

(1) The submissions of the parties: The final issue concerns the playing of music on hold to callers using mobile telephones. APRA argued that this involved a breach of its exclusive right "to broadcast the work" within s 31(1)(a)(iv). To make out its case, APRA had to demonstrate that the activity in question constituted a transmission of the work by Telstra "by wireless telegraphy to the public" ^[F121] . There is no contention that the mobile phone network does not involve transmission "by wireless telegraphy". The sole issue in contest was whether such transmission, in the context of mobile phones, could be said to be "to the public".

The Act contains no definition of "the public". The meaning of this and similar terms (such as "in public") has been considered by the courts in a line of authority dealing primarily with the right to authorise a work to be performed in public. Neither party disputed the authority of those cases. The central point of contention was the applicability of that authority, dealing with public performance rights, to s 31(1)(a)(iv) of the Act as elaborated by s 10(1).

Telstra submitted that the definition of "broadcast" in s 10(1) of the Act, as constituting the transmission by wireless telegraphy "to the public" required that the work in question be capable of reception by a large public. It argued that this is not the case with music on hold:

1.

The words "to the public" and "in public" could not be treated as synonymous, as was found in the Full Court. The cases elucidating the phrase "in public" were not available to support APRA's argument that the playing of music on hold to a user of a mobile phone constituted transmission "to the public". Those cases were concerned with different verbal formulae. They were also concerned with factual contexts not analogous to the present. Most of the cases relied upon in the Federal Court involved dramatic or musical performances in which the entire audience assembled in a particular place, united in their desire to see or hear a particular dramatic or musical work. There was no such group of people, identifiable by a common enterprise and wish, in the present case.

2.

The phrase "to the public" was not satisfied by a small section of the public. It referred to a transmission either to people generally, or at least to a substantial or large audience. Nor was the phrase satisfied by a group of people selected for reasons unrelated to any desire to hear the work in question, for example, those people telephoning a subscriber's number to order a taxi. If there were transmission only to a narrow class of people, that class consisted of those people who desired to hear the works in question, or works of the type in question. It did not include involuntary recipients subjected to the work when their actual desire would ordinarily be that it should terminate as quickly as possible so that the real purpose of their telephone call could be achieved.

3.

Where music on hold was not provided by Telstra but by a third party to a caller, Telstra had absolutely no control over the content of the transmission. It followed that Telstra did not "transmit" the work within the definition in s 10(1) of the Act. If the contrary argument were correct, it could not be confined to music on hold. Logically, it would extend to the repetition (for example by singing or whistling) by any customer of Telstra of any copyright works in the course of a conversation by mobile telephone. It was submitted by Telstra that it could not have been the intention of the Parliament that such a communication would constitute an infringement of the copyright in the works, rendering Telstra, as mere carrier, liable for that breach.

APRA met these submissions as follows:

1.

The term "broadcast" was exhaustively defined in s 10(1) of the Act. The legislative history made it clear that the ordinary meaning of the word was not to govern its construction to the exclusion of the special statutory definition. The purpose of employing the words "the public" in the definition was rather to invoke the well- established line of authority concerning the construction of substantially similar terminology, viz "in public".

2.

The authority of these "public performance cases" had not been challenged. Instead it was contested that the cases were limited to those in which the relevant audience comprised persons willing to pay for the privilege of seeing or hearing the performance ^[F122] . However, the size of an audience had never been an important factor in the public performance cases. The cases uniformly emphasised that it is the nature of the relationship between the audience and the copyright holder which was decisive. Accordingly, the Full Court of the Federal Court was correct in holding that Telstra's transmissions were "to the public", because they were an adjunct to a commercial activity thereby made available to a broad public comprising countless subscribers using Telstra's services.

(2) Three relevant principles: Three broad principles relevant to the characterisation of the activities in question may be discerned from the authorities on public performance rights. First, a number of cases emphasise the distinction between "public" performances and cases which are "domestic and private" ^[F123] . In many of these cases, decided before the broadcast right was enacted, the source of difficulty was the adaptation of the public performance right to the new potential for copyright infringement arising from broadcast technology. In the early days of radio broadcasting, the Supreme Court of Victoria held in Chappell & Co Ltd v. Associated Radio Co of Australia Ltd ^[F124] that a broadcast constituted a performance in public, despite the fact that each listener's receiver might be in the privacy of his or her own home ^[F125] :

"The fact that in America, at all events, broadcasting is used largely for purposes of advertising, shows the advantages it has in bringing about publicity. In fact, publicity is inherent in the word itself, and it is satisfactory to find that by the application of ordinary legal principle a conclusion in accordance with common understanding is arrived at."

The same conclusion was reached elsewhere by different reasoning. The applicable principles were set out by the Privy Council in Mellor v. Australian Broadcasting Commission ^[F126] :

"Here it is necessary to remember that the sole right of the owner of the musical work is to perform it in public , and that anyone may perform the work in private. The original performance in the studio may be, and generally will be, a performance in private. In such a case the broadcast performance at the receiving end, if in public and unlicensed, will be an infringement of copyright at that place ^[F127] . If there is merely a broadcast from the studio where the piece is performed in private, there is obviously no performance in public at all ... If the broadcast is picked up only by listeners in private it might be difficult to establish that there is a public performance; for each performance would be separate, and each would be private ... Whether the studio performance is public or private, if the persons who are responsible for that performance are also responsible for the broadcasting of the piece, there is no doubt that they have facilitated the performance of the work in public by any listener who is in a position to use a loud speaker and thus to perform the piece in public."

The line of cases defining the performance of a work "in public" in opposition to private performance, was reviewed by Gummow J in Australasian Performing Right Association Ltd v. Commonwealth Bank of Australia ^[F128] . His Honour there concluded ^[F129] :

"Running through the authorities I have discussed is the notion that for the purposes of this performing right a performance will be "in public" if it is not "in private", and the perception of an antithesis between performances which are in public and those which are "domestic" or "private" in character. In determining whether a performance answers the latter description, the nature of the audience is important. In coming together to form the audience for the performance were the persons concerned bound together by a domestic or private tie or by an aspect of their public life?"

The second principle arises from the necessity of answering the question posed by Gummow J in the last sentence. What is the nature of the audience in question? In this respect it appears that where the performance occurs "as an adjunct to a commercial activity the performance is likely to be regarded as public" ^[F130] . The authority for this proposition reaches back at least to the decision of the English Court of Appeal in Duck v. Bates ^[F131] , in which Brett MR held that, for a free performance to be "public", it would have to be attended by a sufficient portion of the public who would also choose to go to the same performance if they had to pay ^[F132] . In Harms (Incorporated) Ltd v. Martans Club Ltd ^[F133] , it was suggested that the rationale for the requirement was that attention should be focused upon the harm caused to the creator of the works ^[F134] :

"In dealing with the tests which have been applied in the cases, it appears to me that one must apply one's mind to see whether there has been any injury to the author. Did what took place interfere with his proprietary rights? As to that, profit is a very important element."

The commercial context in which the performance takes place has been repeatedly identified as an important element in defining a performance, "public" in character, both in Australia ^[F135] and other jurisdictions ^[F136] . However, it is important to recognise that this is relevant chiefly as an indication that the proprietary rights of the copyright owner may be being infringed. A significant consideration of the law of copyright is, after all, the protection of the proprietary rights of the copyright holder which have an economic value.

It is the recognition of this rationale upon which the third, and for the purposes of the present case, most important, principle is based. That is, that the relevant "public" is the group which the copyright owner would otherwise contemplate as its public for the performance of its work. This was made clear in Jennings v. Stephens ^[F137] :

"The question may therefore be usefully approached by inquiring whether or not the act complained of as an infringement would, if done by the owner of the copyright himself, have been an exercise by him of the statutory right conferred upon him. In other words, the expression 'in public' must be considered in relation to the owner of the copyright. If the audience considered in relation to the owner of the copyright may properly be described as the owner's 'public' or part of his 'public', then in performing the work before that audience he would in my opinion be exercising the statutory right conferred upon him; and any one who without his consent performed the work before that audience would be infringing his copyright."

The same approach was affirmed by the English Court of Appeal in Ernest Turner Electrical Instruments Ltd v. Performing Right Society Ltd ^[F138] , where it was stressed that the primary consideration was the relationship of the audience to the owner of the copyright rather than that of the audience to the performers ^[F139] .

The concept of the copyright owner's "public" has also been accepted by Australian courts as the preferable test for deciding whether a particular performance was "public" or not. Referring to the English decisions above, Rath J, in Rank Film Production Ltd v. Dodds ^[F140] , noted that it was not the size of the audience or the privacy of the surroundings which were decisive in determining whether a performance was "in public", but rather the ascertainment of the relationship between the audience and the copyright owner ^[F141] . His Honour continued ^[F142] :

"The words 'in public' ... must be construed in the context of the history of the copyright legislation and the case law ... Performance "in public" means performance to the public of the owner of the copyright, and 'public' includes a portion of the public, however small."

(3) Particular legislative history: No authority exists which conclusively decides the meaning of the words "to the public" as they appear in the definition of "broadcast" in s 10 of the Act. In relation to the use, by analogy, of the authorities set out above a court should be cautious in invoking earlier judicial dicta or holdings in relation to different phrases appearing in different statutory contexts, enacted for different purposes ^[F143] . Earlier judicial reasoning may, of course, be of assistance. However, the obligation of anyone construing legislation is that of ascertaining the meaning of the phrase in question in the context under scrutiny. Nevertheless, in the present case, the authorities do, I think, assist in giving content to the words "to the public". The legislative history of the broadcast right in the context of the general nature of copyright law argues against the contrary conclusion.

Before the enactment, in 1986, of the broadcast right in s 31(1)(a)(iv) of the Act, copyright owners were obliged to rely upon the public performance right for protection of copyright in their work when it was broadcast. As noted above, the case law prior to 1986 reflects the attempts by the courts to adapt the public performance right to broadcasting activities ^[F144] .

As originally enacted, the Act provided in s 10(1) that "broadcast" meant "broadcast by wireless telegraphy". Although the definition was exhaustive, because it included the word "broadcast" itself, that word was to be construed according to the ordinary principles of construction ^[F145] . Before the amendment of the Act in 1986 ^[F146] there was no requirement for the broadcast to be "to the public". Most broadcasts are received in private ^[F147] . Therefore, no protection was needed for the copyright owner in respect of such activity.

The Act was amended twice in 1986. The Copyright Amendment Act 1986 (Cth) amended the definition in s 10(1) of the Act to read "'broadcast' means broadcast, other than from point to point, by wireless telegraphy". A new s 10(1A) deemed a broadcast to be taken to be "point to point" "if it is intended by the broadcaster to be received only by particular equipment at a particular location". The Second Reading Speech ^[F148] on the Copyright Amendment Bill 1986 and the Explanatory Memorandum ^[F149] identified the reasons for the amendment. It was to ensure that broadcasts via satellite (AUSSAT) fell within the provision and to make clear that only transmissions intended to be received by the public were to be within the broadcasting right, and not those intended for particular recipients ("point to point transmissions").

Before the amended provisions came into force they were, in turn, replaced by the Statute Law (Miscellaneous Provisions) Act (No 2) 1986 (Cth). This deleted s 10(1A). It introduced the definition of "broadcast" as it now stands. The Explanatory Memorandum which accompanied that measure explained the purpose of the amendment as follows ^[F150] :

"Accordingly programme-carrying signals not intended to be received by the copyright-owner's public will not be 'broadcasts' even if a few members of the public possessing specialised equipment are able to pick them up." (emphasis added).

The Attorney-General's Second Reading Speech also confirmed the meaning intended to be attributed, in this context, to the words "to the public" ^[F151] :

"The amendment will clarify the definition of 'broadcast', which was modified by the Copyright Amendment Act 1986, passed last sittings. Interested groups have submitted that the wording inserted by that Act is ambiguous, and does not express the Government's intention that 'broadcast', in this context, should cover transmissions to the copyright owner's public, whether the 'general' public or part of the public. Following consultations there is agreement with the policy and wording of the proposed new definition." (emphasis added).

The definition of "broadcast" in s 10(1) of the Act is now exhaustive. The legislative history set out above makes it tolerably clear that the words "to the public" in the definition were intended to refer to the "copyright owner's public". That phrase would not have been chosen accidentally. It is a phrase with a long history in cases dealing with public performance rights. The only inference to be drawn from the use of that phrase is that the words "to the public" were intended to import the copyright owner's public.

This conclusion, suggested by the legislative history, is strengthened by a consideration of the general objectives and nature of copyright law. That consideration has been recognised in the past as an important aid to interpretation of copyright legislation ^[F152] .

(4) Conclusion: copyright owner's public: Can the transmission of music on hold by Telstra be said to be a transmission to the copyright owner's public? On the criteria expressed in the case law it can. Music on hold is played largely by businesses and other organisations to entertain, placate or distract customers or clientele, in a way hoped to be congenial to them, while the telephone lines are engaged. Telstra plays or transmits it as part of its overall telephonic communications enterprise. It is undoubtedly provided as "an adjunct to a commercial activity" ^[F153] . It cannot be described as "private" or "domestic" in character ^[F154] . A telephone conversation may be private. However, when callers are placed on hold, they do not hear music simply because the person on the other end of the line is busy and selects that particular individual as the recipient of the music. They hear the music because it is intended that any member of the public who calls the engaged number, will hear the music. A caller hearing music on hold, must therefore be part of that "public" which the owner of the copyright in the music contemplates to be part of its audience.

For the foregoing reasons, the provision or transmission of music on hold by Telstra constitutes a "broadcast" of the work within the terms of s 31(1)(a)(iv) of the Act. The Full Court was correct in so deciding.

Implications of this decision

It has been suggested that the foregoing conclusions could have significant consequences for other information technologies - including facsimile services, video conferencing and data transmission ^[F155] . In particular, it has been argued that telecommunications carriers and perhaps even internet service providers could potentially become liable as a result of internet users' downloading works which are protected by copyright. Clearly, such issues go beyond the scope of this appeal. They were not developed in the arguments of the parties. However, the Parliament may need to consider these questions - and others arising - and to formulate a legislative response to them. They cannot be solved, but have not been overlooked, by me.

Order

The appeal should be dismissed with costs.