18.8 A retransmission is defined in the Copyright Act as a retransmission of a broadcast, where the content of the broadcast is unaltered and either simultaneous with the original transmission or delayed until no later than the equivalent local time. Retransmission without the permission of the original broadcaster does not infringe copyright in broadcasts, by virtue of provisions contained in the Broadcasting Services Act.
18.9 The Broadcasting Services Act states that no ‘action, suit or proceeding lies against a person’ in respect of the retransmission by the person of certain television and radio programs. The retransmission must, however, be within the licence area of the broadcaster or, if outside the licence area, with the permission of the Australian Communications and Media Authority (ACMA).
18.10 In this way, the Broadcasting Services Act provides immunity against any action for infringement of copyright that might otherwise be able to be brought by the original broadcaster for retransmission of a free-to-air broadcast.
18.11 The immunity does not extend to copyright subsisting in a work, sound recording or cinematograph film included in a free-to-air broadcast (the underlying rights) unless the retransmission is provided by a ‘self-help provider’.
18.12 A self-help provider is defined to cover entities that provide transmission ‘for the sole or principal purpose of obtaining or improving reception’ in particular places. Briefly, self-help providers include non-profit bodies, local government bodies or mining companies, which provide retransmission to improve reception in communities; or other persons providing retransmission by in-building cabling of apartment buildings and hotels. Self-help providers do not have to remunerate either the free-to-air broadcaster or the underlying rights holders.
18.13 The ALRC does not recommend any change to the operation of the unremunerated exceptions applying to retransmission by self-help providers. These exceptions appear to retain relevance, and there has been no indication that they require review. References to the ‘retransmission scheme’ in this chapter should be read as excluding the provisions applying to retransmission by self-help providers.
18.14 For retransmitters, other than self-help providers, pt VC of the Copyright Act provides a statutory licensing scheme for the underlying works. The Act provides that the copyright in a work, sound recording or cinematograph film included in a free-to-air broadcast is not infringed by retransmission of the broadcast, if equitable remuneration is paid. Screenrights collects the licence fees, identifies the programs that are retransmitted and pays royalties to the rights holders. Royalties are generated when free-to-air broadcasts are simultaneously retransmitted by another service. Retransmission of a free-to-air broadcast that ‘takes place over the internet’ is excluded from this remunerated exception by virtue of s 135ZZJA of the Copyright Act.
18.15 Essentially, the current retransmission scheme allows the retransmission of free-to-air broadcasts, without the permission or remuneration of the broadcaster, and for equitable remuneration to be paid to the underlying rights holders.
18.16 In relation to this remuneration, the Copyright Tribunal has concluded that the benefits to subscription television consumers of the retransmissions, and therefore the value of those retransmissions to subscription television companies, are best described under the heading of ‘convenience’—the advantage to consumers of only having to use one remote control to access subscription and free-to-air channels.
Copyright Act 1968 (Cth) s 10.
Broadcasting Services Act 1992 (Cth) s 212.
Ibid s 212(1)(b)—in the case of programs transmitted by a commercial broadcasting licensee or a community broadcasting licensee.
Ibid s 212(2A).
Ibid s 212A.
In 2011–12, the ACMA issued 417 broadcasting retransmission licences to regional councils and other self-help providers, mainly for television broadcasts: Australian Communications and Media Authority, Annual Report 2011–12 (2012).
Copyright Act 1968 (Cth) s 135ZZK.
Ibid pt VC.
Audio-Visual Copyright Society Limited v Foxtel Management Pty Limited  ACopyT 1 (1 June 2012), .