Case Studies/Reports - Centre for Flexible Learning (CFL)



Are you paying royalty dues for copyright music, or live performances in public places? A case of Fiji not-for-profits

If you are a not-for-profit organisation playing music or performing live, or allowing others to play music or perform live in public, and already paying royalties to Fiji Performing Rights Association Limited (FPRA), you are in safe hands.

If you have not, you are still protected if you can show:

  1. the club, society or organisation is not established or conducted for profit;
  2. the main objects in the Constitution or Rules or Memorandum of Association are charitable or concerned with the advancement of religion, education, or social welfare;
  3. the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the club, society or organization;
  4. what is played or performed is all sound recordings, not musical works;
  5. the sound recordings are played as part of its activities, complying with conditions 1, 2, and 3;
  6. plead a Copyright Act section 75 defence. If all else fails, play original music.

If you are a not-for-profit organisation and cannot show the six saving graces (1-6) above, you may be liable to pay royalty to FPRA, as the Lautoka Sugar Festival Association (LSFA), found. Recently, the Fiji High Court at Lautoka found the LSFA was liable to pay $11,866.97 for six years of royalties, and its directors, servants, employees and/or agents were injuncted from allowing, offering, contracting, consenting, concluding or permitting live performance, recorded broadcast or otherwise of any copyright music on any of its properties without a license from the Fiji Performing Rights Association Limited (Fiji Performing Right Association Limited -v- Lautoka Sugar Festival Association [2019] HBA 18/18L 8 May 2019 per Ajmeer, J).

This far-reaching case has financial implications for those choosing to ignore a royalty warning. This case asked whether the Association was able to show a credible defence under the Fiji Copyright Act 1999 section 75. While the Magistrates Court initially ruled in favor of LSFA, an appeal by FPRA to the Fiji High Court overturned the ruling in favor of FPRA. It was determined by the High Court that FPRA was able to show through a licence agreement "Contract of Reciprocal Representation and Administration" with the Australasian Performing Rights Association (APRA) that it is a copyright owner of all musical works registered by FPRA and APRA. The High Court found the LSFA did not have any rights in any of the music it played/performed or allowed to be played/performed during the Sugar Festival, without a licence. The High Court said by not denying infringements, the LSFA is taken to have admitted it, and thus, the Magistrate erred in not accepting this point as proved.

Since this article was written, as of 24 September 2019, the LSFA seems not to have paid the damages claim, as there is a Fiji Sun article showing FPRA members holding up the judgment and asking the LSFA to pay up or face fines.

New Zealand’s Copyright Act 1994 contains an identical provision in section 81, which Niue and Tokelau rely on. Solomon Islands has a similar provision in its Copyright Act 1987 section 15(2(b), so a similar defence is possible.

Implications for The University of the South Pacific (USP)

The University of the South Pacific as an educational institution enjoys educational and library exceptions under the Fiji Copyright Act 1999. Educational institutions contain a mixture of profit centres –bars, gyms, staff club- and not-for-profit centres, for example, graduation, USP open day, bookstore where recorded music can be played/performed. If playing original music, there is no issue. The not-for-profit centres can possibly claim a defence under section 75, but the profit centres will have to prove they fit the profile.

Section 75 reads:

"Playing of sound recordings for purposes of club, society, etc.

75.-(1) It is not an infringement of copyright in a sound recording to play the recording as part of the activities of, or for the benefit of, a club, society, or other organisation, if the conditions contained in subsection (2) are complied with.
(2) The conditions referred to in subsection (1) are-

(a)     that the club, society or organisation is not established or conducted for profit;
(b)     that the main objects of the club, society, or organisation are charitable or are otherwise concerned with the advancement of religion, education, or social welfare; and
(c)     that the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the club, society or organisation.".

For more information, please contact us on email copyright(at)usp.ac.fj.






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