18.129 As discussed above, retransmission of a free-to-air broadcast that ‘takes place over the internet’ is excluded from the remunerated exception by virtue of s 135ZZJA of the Copyright Act. There is some uncertainty over the meaning of this phrase and, in particular, its application to IPTV.
18.130 It appears that whether retransmission by an IPTV service ‘takes place over the internet’ may depend on functional characteristics of the service that should have no relevance in deciding whether or not retransmission should be facilitated. For example:
Foxtel is not provided over the internet to a Foxtel set top box but it is provided over the internet to the Foxtel X-box service. But to a consumer, they are more or less the same. Similarly, IPTV services such as Fetch TV and Telstra T-Box are also impossible to distinguish but one happens to be over the internet, while the other is not.
Interpretation of ‘over the internet’
18.131 Some IPTV retransmission may fall within the operation of the pt VC scheme because, ‘while the retransmission occurs over infrastructure shared by an Internet connection, as a direct feed from [internet service provider] to customer at no point is connection to the Internet by either ISP or customer necessitated’.
18.132 Other IPTV retransmission may not fall within the scheme—for example, where the retransmission is so-called ‘over the top’ television (OTT TV). OTT TV in this context means a television-like service where content is delivered over an unmanaged network such as broadband internet, for example, through Telstra T-Box—rather than over a closed managed (or private) network. As a result, some current subscription IPTV services are able to offer access to free-to-air broadcasts only because they include built-in digital TV tuners in their set top boxes.
18.133 In the Discussion Paper, the ALRC proposed that, if it were retained, the scope and application of the internet exclusion should be clarified, and asked how it should be clarified in its application to IPTV in particular.
18.134 A number of stakeholders agreed that clarification of the internet exclusion is desirable. FetchTV, for example, stated that the lack of a definition of ‘the internet’ introduces ‘uncertainty into the retransmission exception both in the copyright and broadcasting contexts’.
18.135 Different policy formulations were suggested. COMPPS and other sporting bodies supported an amendment to confirm that IPTV is included in the scope of the internet exclusion. The AFL, for example, stated that:
any internet related delivery, including IPTV howsoever defined, should be captured by the internet exclusion contained in section 135ZZJA of the Copyright Act. The AFL welcomes clarification of that section to confirm that the retransmission provisions do not apply to transmission over IPTV.
18.136 In contrast, Free TV considered that the retransmission scheme should cover any form of delivery of ‘linear programmed content’, including by ‘cable, satellite, internet, IPTV or mobile platforms’. Ericsson Australia observed that the ‘internet’ as it is known today will continue to evolve with high-speed networks such as the NBN likely to attract new forms of content delivery such as ‘broadband broadcasters’:
These entities may well decide to deliver content and services not over the public internet or ‘over the top’, but rather over dedicated distribution networks, in much the same way today that cable networks deliver both subscription TV as well as internet access … [T]he two services are independent and not reliant on ‘internet’ access for delivery.
18.137 The ACMA stated that differences ‘between modes of internet transmission, such as IPTV and internet video, would be difficult to translate into legislation as they are essentially differences in service models’, and that legislative boundaries applied around the different service models ‘would be unlikely to remain relevant over the long-term as technologies and service models evolve’. The ACMA also noted that the Broadcasting Services Act does not currently differentiate between different types of internet transmission and
proposals that would introduce such a distinction are likely to introduce further complexities into the regulatory treatment of broadcast material. This risks a further fragmentation and overall loss of coherence for content regulation, In the ACMA’s view a coherent regulatory framework for content is a preferable solution to further incremental and piecemeal changes to legislative definitions.
18.138 Screenrights also advised that clarification of the internet exclusion should be approached with caution, because ‘it may have the effect of making the provision harder to understand and administer’. In Screenrights’ experience:
the lack of a definition [of ‘the internet’] has not prevented companies from using Part VC in the widest possible manner. While non-experts may struggle to differentiate between over the internet versus not over the internet, for practitioners this does not seem to be a difficulty.
Amending the internet exclusion
18.139 If the internet exclusion were to remain, its scope should be clarified. At present, the internet exclusion may give some providers of IPTV services a competitive advantage over others, in being able to rely on the pt VC scheme to carry free-to-air broadcasts, despite services being identical to the end consumer.
18.140 While there are differing interpretations, it seems widely accepted that some forms of IPTV are not considered to take place ‘over the internet’, for the purposes of the internet exclusion. On the other hand, it seems that OTT TV is considered to be excluded. While the ALRC understands that OTT TV retransmission of high rating free-to-air broadcasts is unlikely to be offered because it would be likely to overload most internet delivery networks, it is possible that small audience free-to-air channels might be retransmitted in such a way.
18.141 In policy terms, the current interpretation may lead to arbitrary distinctions between retransmission platforms that are not based on the underlying purpose of the internet exclusion.
18.142 The development of the NBN makes it important to clarify the position. The intention is that the NBN will enable content providers to retransmit using internet protocol multicasting, in reliance on the pt VC licence. The NBN Co’s Multicast feature is being marketed as ‘particularly suitable’ for IPTV service delivery. There may be difficulties, and cost implications, in enforcing restrictions on the retransmission of free-to-air broadcasts using the NBN.
18.143 The rationale for excluding retransmission ‘over the internet’ from the retransmission scheme appears to have been to avoid retransmitted content intended for Australian audiences being disseminated globally without the authorisation of the copyright holders.
18.144 Arguably, if the internet exclusion were to remain, it should be redrafted to reflect its purpose of ensuring that internet retransmission does not lead to retransmission that is geographically unlimited. That is, it should be redrafted to reflect the fact that internet protocol technology can be ‘employed in closed, secure distribution systems that offer complete protection against copying and redistribution of programming over the Internet, and that respect the principle of territorial exclusivity’.
18.145 The ALRC has not developed recommendations on how this should be done. As discussed above, the internet exclusion is primarily a matter of communications policy, rather than copyright law. The discussion in this Report is provided as a contribution to that policy development.
18.146 Ideally, the meaning of the phrases ‘over the internet’ in the Copyright Act internet exclusion and ‘using the internet’ for the purposes of defining a ‘broadcasting service’ under the Broadcasting Services Act should be considered and clarified, if necessary, at the same time. In any case, the ALRC has concluded that the preferable course of action may be to repeal the retransmission scheme entirely rather than to ‘tinker’ with the internet exclusion the face of rapid technological change in content delivery.
Recommendation 18–2 If the retransmission scheme is retained, the scope and application of the internet exclusion in s 135ZZJA of the Copyright Act should be clarified.
For the purposes of this discussion, the term IPTV includes TV-like services where content is delivered by internet protocol, whether over the content provider’s own network or ‘over the top’ of existing infrastructure; and only includes streamed and not on demand content.
See, eg, D Brennan, ‘Is IPTV an Internet Service under Australian Broadcasting and Copyright Law?’ (2012) 60(2) Telecommunications Journal of Australia 26.1, 26.1.
Screenrights, Submission 215.
D Brennan, ‘Is IPTV an Internet Service under Australian Broadcasting and Copyright Law?’ (2012) 60(2) Telecommunications Journal of Australia 26.1, 26.9.
Adapting language used by Broadcast Australia: Broadcast Australia, Submission 133.
Australian Law Reform Commission, Copyright and the Digital Economy, Discussion Paper 79 (2013), Proposal 15–3; Question 15–2.
Free TV Australia, Submission 865; ABC, Submission 775; Optus, Submission 725; Fetch TV, Submission 721; AFL, Submission 717; Cricket Australia, Submission 700; COMPPS, Submission 634; Ericsson, Submission 597.
Fetch TV, Submission 721.
COMPPS, Submission 634.
AFL, Submission 717; Cricket Australia, Submission 700.
Free TV Australia, Submission 865.
‘To illustrate, a clear distinction can be made between the network communications protocol TCP/IP, which happens to be used for the internet, as well as for private networks which clearly are separated from the internet’: Ericsson, Submission 597.
ACMA, Submission 613. Communications Alliance cautioned against ‘attempting to define concepts such as the internet or internet TV protocol in legislation’: Communications Alliance, Submission 653.
Screenrights, Submission 646. In contrast, the ABC observed that the term IPTV has ‘no commonly accepted definition in the industry’ and the current legal position of some operators under the retransmission scheme ‘is not clear as it might be argued that they are not able to access pt VC legally because they are retransmitting via the internet’: ABC, Submission 210.
Screenrights, Submission 288.
Screenrights, Submission 215.
NBN Co, Multicast—Broadcasting the Future <www.nbnco.com.au/getting-connected/service-providers/multicast.html> at 2 March 2013. NBN multicasts ‘will be accessible from the same physical port on the NBN Co network termination equipment as the accompanying broadband internet connection’: Broadcast Australia, Submission 133.
Motion Picture Association of America Inc, Submission 197.
Copyright Act 1968 (Cth) s 135ZZJA.
As discussed in Ch 16, a ministerial determination, made in 2000 under the Broadcasting Services Act, excludes a ‘service that makes available television and radio programs using the internet’ from the definition of a broadcasting service: Broadcasting Services Act 1992 (Cth) s 6; Commonwealth of Australia Gazette—Determination under Paragraph (c) of the Definition of ‘Broadcasting Service’, (No 1 of 2000), Commonwealth of Australia Gazette No GN 38, 27 September 2000.
See IMW Media Services, Submission 757.