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Kate Duckworth
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The Party on the Lawn – was it okay for Trevor Mallard to use music without permission or payment? 

Those who live in glass houses have been throwing stones.

National MP Melissa Lee asked a series of questions of Speaker of the House of Parliament Trevor Mallard about whether he had permission to play the music he used in an attempt to drive away the protesters at Parliament in February this year.

As the protest took hold and seemed unmoveable, Mallard called on a range of novel tactics to drive the protesters away.  He played, loudly, a selection of music, handpicked to be annoying enough to drive the protesters away.  The soundtrack included James Blunt and Barry Manilow.

After the protest, Lee asked a series of questions in the House querying whether Mallard had sought the appropriate permissions and paid appropriate compensation to the copyright owners.

Mallard’s answer was:

“It is my understanding that playing music in a non-commercial setting, which is closed to the public, and where no fee has been charged for entry, does not require a licence or permission”.

That seems wrong, right?  How can you blast music out, in public, without permission or recompense to the copyright owners?

Always useful to look at the legislation

It turns out Mallard was well advised.  There are two little-known or used sections in the Copyright Act 1994 that excuse what seems like otherwise infringing conduct.

Section 87A of the Copyright Act 1994 allows for the free public playing of music in certain circumstances.  Those circumstances include where the playing of the music is in a public place and the audience has not paid for admission to the public place or the venue is a hotel, motel, camping ground, or any other place that admits persons for a fee for the purposes of temporary accommodation.

Parliament was certainly turned into a camping ground.  A muddy, smelly, unruly campground.  Although it seems unlikely that the campers will ever pay any sort of fee for their accommodation or their free parking for that matter.

Section 63 excuses what would otherwise be copyright infringement by the Crown for the purposes of national security or during a period of emergency or in the interests of the safety and health of the public or any members of the public.  Section 63 also provides that the Crown is liable to pay ‘equitable remuneration’ to the copyright owner.

So while it seems those sections are of great assistance to Mallard in avoiding what would otherwise be copyright infringement, Lee asked was not only fair that creators are paid for the use of their work?  Too right.  Musicians, out of all types of creatives, have had a particularly hard time since COVID-19 has by and large ruined the opportunity for live music. 

Well advised and not so well-advised

Mallard’s advice can be contrasted with the position the National Party found itself in with its choice of 2014 election campaign advertising featuring an infringing ‘sound-alike’ Eminem track. 

Even though Steven Joyce thought it was “pretty legal”, that case made it all the way to the Supreme Court and dragged on for five years, resulting in a finding of copyright infringement and an award of damages against the National Party. 

To be fair to the National Party, copyright law is complex, nuanced, generally misunderstood and a difficult area of law to predict outcomes in and therefore advise on.

Having received a hiding all the way through the courts however, it seemed a bit rich for Lee as a member of the National Party to be throwing stones at the Speaker on copyright infringement.

If you think Kate Duckworth's intellectual property specialty could help your business, please make contact with her at: kate.duckworth@gibsonsheat.com.