Copyright and communications policy

18.26 The Terms of Reference specifically directed the ALRC to take into account the recommendations of the Australian Government’s Convergence Review.[27] In particular, the Convergence Review suggested that the retransmission provisions be reviewed as part of the ALRC’s Inquiry.[28]

18.27 The ALRC faces challenges in making firm recommendations for the reform of the retransmission scheme—and the broadcast exceptions discussed in Chapter 19. The technologies by which people access audiovisual and, in particular, television-like services, are changing rapidly both in Australia and overseas. At the same time, the future shape of communications and media policy in Australia is in a state of flux, following the Convergence Review and in the absence of an Australian Government position on reform.

18.28 If the recommendations of the Convergence Review were accepted, broadcast regulation in Australia would look very different, with wide-reaching implications for the Copyright Act. The Convergence Review recommended the abolition of the system of licensing commercial broadcasters, with regulation instead to be applied to ‘content service enterprises’—enterprises delivering professional content to a large number of Australian users and deriving a high level of revenue from the delivery of these services to Australians.[29] The Convergence Review also envisaged limits being placed on control of content by copyright owners to address competition concerns, recommending that a new communications regulator should have the power to investigate content-related competition issues and promote fair and effective competition in content markets.[30]

18.29 Implementing the Convergence Committee’s recommendations would require significant rewriting, and perhaps rethinking, of Australian copyright law. Links with the Broadcasting Services Act would need to be removed from the Copyright Act and decisions made about extending copyright protection and exceptions beyond licensed broadcasters—for example, to all ‘content service enterprises’ otherwise subject to communications and media regulation.

18.30 In this context, the ALRC carefully considered whether its Inquiry was an appropriate forum to make recommendations concerning retransmission.[31] While some stakeholders considered that there was no reason the ALRC should not consider reform of the retransmission scheme,[32] others felt that the central importance of communications policy issues meant that the ‘incidental’ copyright issues should be left to other policy-making processes.[33]

18.31 The AIG argued, for example, that the ALRC Inquiry was not the appropriate forum ‘to determine issues related to the treatment of retransmission of broadcasting signals under the Act because any reform to current arrangements would have impacts beyond copyright policy and should not be made in isolation from these broader effects’.[34]

18.32 AIG observed that in July 2013, the Senate Environment and Communications References Committee, in its report on radio simulcasts, recommended that the Minister for Broadband, Communications and the Digital Economy and the Attorney-General ‘fully and urgently address in a comprehensive and long-term manner all of the related broadcasting and copyright issues identified in numerous reviews, and by many stakeholders, following receipt of the ALRC [copyright] review’.[35]

18.33 COMPPS stated that, before making any changes to the retransmission scheme, the ‘communications, convergence, competition and other similar legal and policy considerations and impacts would need to be considered’ and these areas were outside the ALRC’s Terms of Reference—making it impossible for the Inquiry to ‘properly review and make recommendations’ on retransmission.[36]

18.34 Free TV stated that retransmission should be the subject of a further review, which should ‘take as its starting point the acknowledgement that broadcasters should be accorded retransmission consent’.[37]

18.35 The retransmission scheme raises significant communications and competition policy questions. These should not necessarily be determined by decisions made about copyright law, but in the context of a more comprehensive review of issues at the intersection of copyright and broadcasting—including in relation to the concept of a broadcast as protected subject matter, as an exclusive right and in exceptions.

18.36 In the absence of clear directions on communications and media policy reform, the ALRC is not in a position to make detailed recommendations regarding reform of the retransmission regime. However, given the significant engagement of stakeholders with the issues surrounding retransmission, the ALRC considers that it is appropriate to express some views on this matter, while recognising that communications and competition policy factors may ultimately dictate other conclusions.[38]