Exceptions for persons using broadcasts

19.114 Sections 199, 200 and pt VA of the Copyright Act operate to provide exceptions for the benefit of persons receiving, communicating or making a record of a broadcast. The references to ‘broadcast’ in these sections serve to limit the application of these sections to broadcasts made by content providers that are broadcasting services for the purposes of the Broadcasting Services Act.

Reception of broadcasts

Example: A supermarket plays radio broadcasts for the entertainment of its customers.

19.115 Section 199 provides unremunerated exceptions in relation to the reception of broadcasts of works, sound recordings and films. Essentially, the effect of these provisions is that enterprises such as pubs, supermarkets and other shops are permitted to play radio or television broadcasts without infringing copyright.

19.116 Under s 199(1), where an extract from a literary or dramatic work is broadcast, a person who, by receiving the broadcast causes the work to be performed in public, does not infringe copyright in the work.

19.117 Section 199(2) provides that where a person, by receiving a television or sound broadcast, causes a sound recording to be heard in public, there is no infringement of copyright in the sound recording. However, while the supermarket (in the example above) need not license the right to play the sound recording, it must still obtain a licence to use the underlying musical works.

19.118 Section 199(3) provides that where a person, by receiving an authorised television broadcast, causes a film to be seen in public, the person is to be treated as if the holder of a licence granted by the owner of the copyright to show the film.

19.119 The framing of the term ‘broadcast’ in s 199 is narrower than in the case of some of the other exceptions, being restricted to broadcasts made by the ABC, SBS, holders of broadcasting licences, or persons authorised by class licences, under the Broadcasting Services Act.[113]

19.120 The policy behind the exception appears to be that it is reasonable to allow the reception of broadcasts in public, as it would be impractical to control this form of communication. This rationale seems to apply equally to similar content that is transmitted using the internet. Therefore, in the Discussion Paper, the ALRC proposed that s 199 be amended to apply to the transmission of television or radio programs using the internet.[114]

19.121 Some stakeholders specifically opposed the extension of the s 199 exceptions on the basis that it would advantage internet radio services.

19.122 Nightlife, for example, stated that extending s 199 would create ‘an unfair advantage to radio streaming providers like Pandora’ and extending it to ‘on demand’ services would ‘decimate the music industry’.[115] Similarly, the PPCA stated that the extension of s 199 would cause ‘inequitable treatment of performers and copyright owners in sound recordings’. For example, if an internet radio service was subject to this unremunerated exception,

a nightclub, café or restaurant could tailor its service to play a particular style or genre of music in a commercial setting for the entertainment of its customers without the need to obtain a licence or pay for the public performance of sound recordings which in that setting would clearly add considerable value to the business and to the customers’ experience.[116]

19.123 Stakeholders considered that s 199 should instead be repealed on the basis that it constitutes an unjustified restriction on the rights of rights holders and is unnecessary due to the availability of voluntary licensing.[117]

19.124 The PPCA submitted that s 199 unfairly prejudices the legitimate interests of the owners of copyright in sound recordings; creates an anomaly between how sound recordings and musical works are treated; and is not required under intellectual property treaties.[118] To retain s 199 would be to ignore the fact that

there is a commercial licensing regime in place for musical works relating to the public performance of musical works embodied in broadcasts (as administered by APRA) which is denied to sound recordings by the operation of existing section 199(2).[119]

19.125 Enterprises that play radio or television broadcasts for their customers already have to obtain a licence to use the underlying musical works, and there is no indication that voluntary licensing does not operate adequately in this regard.

19.126 The Australian Government should consider repealing the unremunerated s 199 exception, which would require enterprises to obtain licences from the owners of copyright in sound recordings.

Use of broadcasts for educational purposes

Example: A high school records a radio broadcast for schools to replay the broadcast in the classroom at a later time.

19.127 Section 200(2) of the Copyright Act provides an unremunerated exception in relation to making a recording of a sound broadcast, for educational purposes, being a broadcast intended to be used for educational purposes.

19.128 This exception is expressly permitted by the Rome Convention, which states that domestic laws and regulations may provide for exceptions as regards ‘use solely for the purposes of teaching or scientific research’.[120]

19.129 The rationale for allowing unremunerated use of educational radio broadcasts, but not in relation to internet radio services, is not clear.

19.130 The ALRC would expect that the use of a recording of a radio broadcast for educational purposes would be covered by the new fair use exception—although this would depend on the application of the fairness factors in the particular circumstances. In Chapter 14, the ALRC proposes that, if fair use is enacted, s 200 should be repealed.

Copying of broadcasts by educational institutions

Example: A university records a television broadcast of a film for use in film studies classes.

19.131 Part VA of the Copyright Act provides a statutory licensing scheme applying to the copying and communication of broadcasts by educational institutions and institutions assisting persons with an intellectual disability, as long as this is for one of the authorised statutory purposes.[121]

19.132 The Copyright Amendment Act 2006 (Cth) extended the pt VA licensing scheme, pursuant to s 135C(1), to apply to ‘a communication of the content of a free-to-air broadcast, by the broadcaster making the content available online at or after the time of the broadcast’.

19.133 The Explanatory Memorandum said that this provision responded to ‘the increasing trend of broadcasters making the content of their broadcast material available online, either simultaneously or at a later time (eg, through services commonly referred to as webcasting or podcasting)’.[122]

This extension caters for the possibility that the owners of copyright in the content of a broadcast, in agreeing to its being made available online as a podcast, may not have agreed to license more than downloading for the private listening/viewing by the downloader; that is they may not have expressly or impliedly licensed the downloader to communicate the content to the public or play/show it in public.[123]

19.134 Given that the underlying copyright owners have authorised downloading for consumption by the downloader, who could be a student watching or listening to the podcast in connection with his or her studies, s 135C ‘sensibly allows educational institutions to facilitate that activity’.[124]

19.135 Part VA is often referred to as the ‘statutory broadcast licence’ and permits educational institutions to copy radio and television programs, including programs from free-to-air broadcasters and satellite and subscription radio and television. Educational institutions can also copy and communicate podcasts and webcasts that originated as free-to-air broadcasts and which are available on the broadcaster’s website.[125]

19.136 A number of stakeholders expressly identified the existing definition of broadcast as being problematic in the context of the pt VA scheme.[126] The Society of University Lawyers submitted that pt VA is not adequate or appropriate in the digital environment because it excludes ‘internet transmissions or internet-only content uploaded by television or radio broadcasters’, despite the fact that such content, and the use of tablets rather than television, are becoming more common.[127]

19.137 CAG Schools stated that, while pt VA applies to broadcasts and to some free-to-air broadcasts made available online, under the current Copyright Act definition of broadcast ‘many types of content such as communications delivered via internet protocol television (IPTV), the majority of online content such as “made for internet” content, YouTube videos etc are currently excluded from the Part VA licence’.[128]

19.138 Screenrights stated that the exclusion of transmissions over the internet from the definition of broadcast creates ‘an unnecessarily complicated distinction for educators’.[129] Screenrights explained:

Depending on the transmission mechanism, the program may or may not be part of a broadcast, and therefore amenable to copying under Part VA. This is illustrated for example by IPTV services offered by FetchTV: if you receive FetchTV through iiNet or Internode it is a broadcast, whereas if you receive FetchTV through Optus it is not a broadcast, and a copy would not be protected by the statutory licence.[130]

19.139 Screenrights observed that voluntary licensing is unable to fill this gap, because it is not possible to offer a comprehensive voluntary licence for educational institutions to copy broadcasts. It recommended that the definition of broadcast in pt VA be amended to ‘deem linear television and radio services to be broadcasts’ for the purposes of pt VA.[131]

19.140 In contrast, Universities Australia opposed any expansion of pt VA for two reasons:

Firstly, expanding the Part VA licence to include freely available internet content may result in Australian universities paying for content that no one ever expected to be paid for and that can currently be used in reliance on s 200AB. Secondly, even if the intention were to confine an expanded Part VA to ‘the online equivalent of television or radio programs’, we are concerned that the practical effect would be for Part VA to potentially apply to a much broader range of content than the ALRC appears to anticipate, as the line between ‘TV like’ and ‘other’ kinds of video content increasingly blurs.[132]

19.141 In the ALRC’s view, the extension of the pt VA statutory licence to cover some other forms of communication to the public, including using the internet, should be considered. There may be good reasons to extend the licence, for example, to television or radio-like content that is provided using the internet by a provider that is not a broadcasting service. Again, the licence may need to be restricted to linear, programmed content to avoid applying to all internet content.