18.37 The Discussion Paper described how options for reform of the retransmission scheme are dependent on assumptions about matters not within the scope of the ALRC’s Inquiry, including:
the scope of the exclusive rights covered by broadcast copyright, or other protection of broadcast signals;
the extent to which retransmission of free-to-air television and radio broadcasts still needs to be facilitated in a converging media environment; and
the extent to which it remains important to maintain geographical limits on the communication of free-to-air broadcasts.
18.38 Reform raises threshold questions about what exclusive rights should be covered by broadcast copyright. In Australia, broadcasters are provided with broader protection than required internationally. The Rome Convention provides only limited protection and does not require that copyright cover broadcasts. The Rome Convention permits exceptions to broadcast protection, including: private use; the use of short excerpts in connection with the reporting of current events; ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; and use solely for the purposes of teaching or scientific research. Signatories may also provide for the same kinds of limitations with regard to the protection of broadcasting organisations as domestic law provides ‘in connection with the protection of copyright in literary and artistic works’.
18.39 From this perspective, options for reform can be seen as relatively unconstrained, in copyright policy terms, because the Rome Convention does not require broadcast copyright, and allows a series of exceptions not found in the Berne Convention. Arguably, the nature of broadcast rights can justify anomalous exceptions—that is, exceptions that do not apply to other subject matter.
18.40 The scope of broadcast copyright has long been tied up with debates regarding communications policy, including ‘the facilitation of the subscription television industry, ensuring access to broadcasts in remote areas, and the introduction of digital and high-definition technologies’. Associate Professor Kimberlee Weatherall has observed that the ‘desire to promote these goals of broadcast policy has led to broadcasters being denied certain rights they might, as copyright owners, expect to have’.
18.41 Copyright law has longstanding links with communications regulation, which has tended to emphasise the ‘special’ place of broadcasting in the media landscape. The Copyright Act contains, for example, many unremunerated and remunerated exceptions that take the circumstances of the broadcasting industry into account, including the statutory licensing scheme for radio broadcast of sound recordings and other broadcast exceptions discussed in Chapter 19.
18.42 Historically, regulators have pursued a range of public policy goals in relation to broadcasting, such as ensuring universal public access, minimum content standards (including classification and local content rules), diversity of ownership, competition and technological innovation.
18.43 The retransmission scheme, in facilitating access to free-to-air broadcasts across media platforms, was intended to serve at least some of these public policy goals. The extent to which retransmission remains important may, however, be questioned in light of the convergence of media content and communications technologies. For example, if television audiences fragment across a multiplicity of broadcast, cable and online programming, or there is a move away from licensing media content providers, the case for a retransmission scheme that qualifies ordinary copyright principles may be weaker.
18.44 The retransmission scheme can be seen as favouring certain commercial interests in the communications and media markets. At present, subscription television providers do not need to license broadcast copyright when retransmitting free-to-air broadcasts, which advantages them over internet content providers by removing the need to negotiate rights with broadcasters. Similarly, cable and satellite subscription television providers have an advantage in being able to access the pt VC statutory licensing scheme for the underlying rights.
18.45 Whether the existing retransmission scheme produces good outcomes in terms of communications and competition policy is a matter beyond the scope of the ALRC’s Inquiry. Further, many aspects of communications and media regulation are under review, including as a response to the Convergence Review and against the backdrop of the development of the NBN.
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 26 October 1962, ATS 29 (entered into force on 18 May 1964) art 15. International protection of broadcasting organisations has been discussed at length at the World Intellectual Property Organization, by the Standing Committee on Copyright and Related Rights (SCCR). The issue of providing legal protection for broadcasting organisations against unauthorised use of broadcasts, including by retransmission on the internet, has been retained on the Agenda of the SCCR for its regular sessions: World Intellectual Property Organization, Program Activities, Broadcasting Organizations <www.wipo.int/copyright/en/activities/broadcast.html> at 24 April 2013.
International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 26 October 1962, ATS 29 (entered into force on 18 May 1964) art 15(2).
Berne Convention for the Protection of Literary and Artistic Works (Paris Act), opened for signature 24 July 1971,  ATS 5 (entered into force on 15 December 1972).
K Weatherall, ‘The Impact of Copyright Treaties on Broadcast Policy’ in A Kenyon (ed) TV Futures: Digital Television Policy in Australia (2007) 242, 254.
Ibid, 254. More generally, it has been suggested that the ‘main challenges for twenty-first century copyright are not challenges of authorship policy, but rather new and harder problems for copyright’s communications policy: copyright’s poorly understood role in regulating competition among rival disseminators’: T Wu, ‘Copyright’s Communications Policy’ (2004) 103 Michigan Law Review 278, 279.
K Weatherall, ‘The Impact of Copyright Treaties on Broadcast Policy’ in A Kenyon (ed) TV Futures: Digital Television Policy in Australia (2007) 242, 244.
The Convergence Review Committee was established to examine the operation of communications and media regulation in Australia and assess its effectiveness in view of the convergence of media content and communications technologies. The Review covered a broad range of issues, including media ownership laws, media content standards, the ongoing production and distribution of Australian and local content, and the allocation of radiocommunications spectrum: see Australian Government Convergence Review, Convergence Review Final Report (2012).