Peta Stevenson, Christopher Kok, Tash Venaik and Margaret Cai outline the key competition and consumer law takeaways from the recent Parliamentary Inquiry and report on Australian live music.
The House of Representatives Standing Committee on Communications and the Arts recently published its report ‘Am I Ever Gonna See You Live Again?’. The report explores the challenges and opportunities in the Australian live music industry, following an inquiry foregrounding the impacts that COVID-19, changing consumer trends, and global competition and market dynamics have had.
The report makes 20 recommendations for improving the sustainability and growth of live music in Australia. Two of these recommendations call directly for action in the consumer and competition law space – amending the Australian Consumer Law (ACL) to regulate ticket sales and ACCC monitoring of the industry for anti-competitive conduct – whilst a number of other recommendations may indirectly impact consumer outcomes and competitive dynamics in live music.
We examine the key takeaways and broader themes with a competition and consumer law lens.
Calls for ACCC to monitor anti-competitive conduct, as market concentration is placed in the spotlight
The report recommends that the ACCC monitor the Australian music industry for anti-competitive conduct and take enforcement action as required.
In the course of submissions and public hearings, stakeholders emphasised the effects of economic conditions, global competition and market dynamics on Australian artists, businesses and live music events. The report highlights stakeholder submissions about market concentration within the live music industry, noting that only a few major companies – Live Nation (which owns Ticketmaster), TEG Live (which owns Ticketek) and AEG Frontier – control a significant portion (collectively, around 85-90%) of the Australian live music market. Amongst other issues, stakeholders raised concerns about these companies having the ability – through their vertically integrated business models – to control the talent pipeline and ticketing, venue and festival markets. One ticketing company highlighted that their strategy was to ‘avoid competing with Ticketek and Ticketmaster’ altogether.[1] Other issues raised included higher fees or commissions made on ticket sales by the larger ticket platforms and exclusivity clauses specifying when certain artists can play at other events.
The Committee’s scrutiny of these issues has occurred alongside the U.S. Department of Justice’s ongoing lawsuit against Live Nation for monopolizing markets across the live concert industry in the US. The DOJ’s lawsuit, which seeks structural relief to ‘break up’ Live Nation, alleges that it ‘unlawfully maintained monopolies in several concert promotions and primary ticketing markets and engaged in other exclusionary conduct affecting live concert venues, including arenas and amphitheatres.’ While there’s no comparable legal action on foot in Australia:
- the ACCC has indicated it is alive to the issues raised by the DOJ’s lawsuit, and
- an investigation into a possible class action is ongoing over claims of ‘deceptive, misleading or unconscionable conduct’ by Live Nation and TEG Live, with these issues also attracting attention following a Four Corners report on the company’s practices in October 2024.
Amendments to the ACL recommended in line with the Government’s proposed unfair trading practices prohibition
The report recommends that the ACL be amended to better regulate ticket sales to live music by:
- improving the transparency of fees and charges within the price of tickets, and
- limiting extreme variability in ticket prices caused by ‘dynamic pricing’.
This recommendation aims to address concerns around pricing-related practices that take place in the sale of live music tickets. Relevantly, the Committee’s consideration of these issues aligns with the Australian Government’s proposal to introduce a new prohibition on unfair trading practices into the ACL. The Government has consistently highlighted concerns regarding these types of pricing models and previously highlighted concert tickets as an example of where businesses are using ‘tricky tactics’ that harm consumers. The proposed unfair trading practices reforms cover conduct including:
- hidden fees and drip pricing, where a headline price is advertised but the application of fees increase that price as the customer moves through the purchasing process, and
- dynamic pricing, where the price of a good or service changes based on factors like real-time demand.
In its recent consultation paper on the design of proposed unfair trading practices prohibitions, Treasury identified that such practices (combined with tactics such as timeout counters and scarcity notifications) have the potential to unreasonably distort consumer choice and apply pressure on customers to act quickly.[2] The Committee considers that issues like ticket scalping and certain resale practices or ‘dubious reselling’ should be considered as part of these reforms.
More broadly, the report acknowledges shifting behaviours around the consumption of music, particularly in the wake of the COVID-19 pandemic, including the rise of streaming service and social media giving consumers access to music on demand. The Committee noted that this has shifted the way in which revenue is generated by music and the participants that benefit or share in that revenue. These shifting industry dynamics and consumer behaviours have resulted in revenue at times being directed away from artists. Some stakeholders noted that practices such as dynamic pricing, drip pricing and tickets being ‘hoarded off’ are leading to adverse consumer outcomes, while ticket platforms may be benefitting from the resale market and ‘[get] to double-dip on fees’.
Other recommendations
In addition to the findings and recommendations explored above, the report makes other recommendations that are likely to affect the competitive dynamics in the Australian live music industry and ticket sales, if implemented. We have summarised the potential impacts of some of the other recommendations below. A full list of the recommendations is available here.
From stage to scrutiny – where to from here for competition and consumer law
The report acknowledges that the Australian live music industry is complex and dynamic, with a range of different stakeholders.
Some of its recommendations are aimed at addressing what the Committee considers are clear issues in the sale of tickets or the potential for larger players to engage in anti-competitive conduct. Underpinning these issues are concerns around changing consumer behaviours, market concentration, competitive dynamics which involve rising costs on one hand and vertical integration/bargaining power on the other hand.
These issues canvassed in the report are not unique to Australia. While it remains to be seen how the Government and the ACCC will respond, the report contributes to the growing public sentiment that more should be done in this space. In light of the DOJ’s action against Live Nation (which the ACCC has noted it is following), the ACCC’s current enforcement priorities that include unfair contract terms and misleading add-on costs, and the recommendations made by the Committee, an uptick in regulatory enforcement actions in the live music industry and in relation to ticket sales and pricing will not be surprising.
In the face of these challenges, the Committee’s recommendations aim to be ‘The Angels’ that guide the Australian live music industry towards a more sustainable future.
[1] Humantix in its submission noted: ‘The reason we were able to thrive was because we intentionally ignored the large stadium category. Now, can a business do what we did in today’s landscape… Yes. So long as they adopt the same strategy as we did, which is to ignore competing with Ticketek and Ticketmaster because you’ll get crushed’.
[2] Consultation paper: Unfair trading practices; pp 6 -7.
Image credit: Contact Festival by Aditya Chinchure / Unsplash / Unsplash License / Remixed to B&W and resized
