18.1 Subscription television companies and other media content providers retransmit free-to-air television and radio broadcasts to their own customers. Retransmission, in this context, means providing the content contained in broadcasts by other means, such as cable or satellite transmission, in a simultaneous and unaltered manner.
18.2 The Copyright Act and the Broadcasting Services Act 1992 (Cth) effectively operate to provide, in relation to the retransmission of free-to-air broadcasts:
an unremunerated exception in relation to broadcast copyright;
a remunerated exception in relation to underlying works or other subject matter (‘underlying rights’), which does not apply to retransmission that ‘takes place over the internet’; and
an unremunerated exception in relation to copyright in underlying rights, applying only to retransmission by non-profit self-help providers.
18.3 This chapter examines these exceptions and whether they are adequate and appropriate in the digital environment. This raises complex questions at the intersection of copyright and communications policy. Options for reform are largely dependent on assumptions about matters not within the scope of the ALRC’s Inquiry.
18.4 The ALRC nevertheless recommends that, in developing media and communications policy, and in the light of media convergence, the Australian Government consider whether the retransmission scheme for free-to-air broadcasts should be repealed (other than in relation to self-help providers).
18.5 Removing the retransmission scheme would promote copyright law that is technologically neutral, rather than favouring some retransmission platforms over others. Reform would be based on a view that retransmission no longer needs to be facilitated in a converging media environment, and the extent to which retransmission occurs can be left to be determined by market mechanisms.
18.6 Importantly, removing the retransmission scheme would avoid the need to consider the extension of the scheme to the internet. The fact that extending the scheme to internet retransmission would be problematic suggests that it is not fit for the future. Policy makers should, therefore, be considering how it might be phased out.
18.7 If the existing retransmission scheme is retained, the ALRC recommends that the scope and application of s 135ZZJA of the Copyright Act, which provides that the remunerated exception does not apply in relation to retransmissions ‘over the internet’ (the internet exclusion), should be clarified.