History of the retransmission scheme

18.17 The Broadcasting Services Act, as originally enacted, contained special provisions for retransmission of programs. These provided an immunity against actions, suits or proceedings in respect of such retransmission, for persons other than broadcasting licensees.^[10]

18.18 In 1995, in Amalgamated Television Services Pty Ltd v Foxtel Digital Cable Television Pty Ltd,^[11] the Federal Court confirmed that a cable television service consisting of multiple channels could take advantage of the immunity under s 212 of the Broadcasting Services Act when retransmitting free-to-air broadcasts.

18.19 In 1999, amendments to the Broadcasting Services Act changed the operation of the immunity so that it no longer applied to underlying rights, except where retransmission was provided by a ‘self-help provider’.^[12] This meant that anybody retransmitting programs, other than a self-help provider, would infringe these rights unless retransmission was with the permission and remuneration of the underlying copyright holders.

18.20 The amending bill in its original form would also have required retransmitters to seek the permission of the owners of copyright in broadcasts before retransmitting.^[13] In 1998, the Australian Government announced that ‘new rules’ would be introduced to ‘correct an anomaly … which allowed pay TV operators to retransmit free-to-air television or radio signals without seeking the consent of the originating broadcaster’.^[14] However, in the face of opposition to this requirement from the non-Government parties in the Parliament, the Government introduced an amendment that had the effect of overriding the requirement pending the resolution of outstanding issues ‘through further consultation with industry’.^[15]

18.21 The Berne Convention specifically allows signatories to implement a statutory licence applying to rebroadcast and retransmission of copyright works.^[16] The Copyright Amendment (Digital Agenda) Act 2000 (Cth) introduced the pt VC statutory licensing scheme applying to underlying works.^[17] The stated reason for implementing the licensing scheme was that ‘it would be impractical for retransmitters to negotiate with individual copyright owners in underlying copyright material to enable the retransmission of free-to-air broadcasts’.^[18]

18.22 These provisions were inserted at the same time as the introduction of a new technology-neutral right of communication to the public.^[19] This replaced and extended an existing rebroadcasting right, which only applied to ‘wireless’ broadcasts and not, for example, to cable or online communication.^[20]