19.142 As discussed in Chapter 18, copyright law has longstanding links with communications regulation, which has tended to emphasise the special place of broadcasting in the media landscape. To some extent, the scope of some exceptions may reflect the special characteristics of broadcasts, particularly free-to-air broadcasts, in terms of their ubiquity and market or cultural penetration.
19.143 Where broadcasters are given special treatment in copyright policy terms, this is sometimes seen as commensurate with obligations under the Broadcasting Services Act that do not apply to other content providers. In considering the future of exceptions for broadcasters, the issues include whether a justification remains for an exception; or media content providers other than licensed broadcasters should have a ‘level copyright playing field’.
19.144 The scope of exceptions for persons using broadcasts means they are sometimes required to draw distinctions between broadcasts and other audiovisual content, including internet content—or infringe copyright laws by inadvertently treating broadcast and other content in the same manner. Justifications for the continuing existence of exceptions for persons using broadcasts are most likely to centre on assumptions that broadcast retains a ‘special’ place in the media landscape.
19.145 In the Discussion Paper, the ALRC suggested that some broadcast exceptions should be amended to apply to the transmission of television or radio programs using the internet and asked how this might be done—for example, whether some exceptions should: be extended only to the ‘internet equivalent of television and radio programs’; continue to exclude ‘on demand’ programs; or extend only to content made available by free-to-air broadcasters using the internet.
19.146 One risk of such approaches is that links with technologies or regulatory concepts specific to ‘technologies and regulatory concepts of today’ may become quickly outdated and regulatory distinctions that ‘depend on concepts based on television and broadcasting are extremely problematic in an age of convergence’.
19.147 The ACMA stated, for example, that: defining the ‘internet equivalent’ of radio and television programs is likely to become ‘increasingly problematic’ as business models continue to evolve; changing business models and consumer behaviour will challenge the distinction between live programs and on demand services; and restricting exceptions to free-to-air broadcasters could effectively exclude market entrants from the same ‘opportunities and protections’.
19.148 Further, unexpected consequences may arise from reform. For example, in the context of educational statutory licensing, extending the pt VA licence to additional categories of internet transmission would have the effect of removing many educational uses of online content from an unremunerated to a remunerated exception.
19.149 The broadcast exceptions nevertheless require comprehensive reform in the light of media convergence and changes in the way that media content is consumed by the Australian public. The need for review has been thrown into sharp relief by the decision in PPCA v CRA, which confirmed that a broadcast, for the purposes of the Copyright Act, does not include an internet simulcast of a broadcast.
19.150 Stakeholders agreed on the need for further review. The ADA and the ALCC supported review of the ‘full range of issues across copyright and communications policy’. The ACMA stated that reform should be part of ‘an overall coherent approach to content regulation, to minimise the potential for proposals to have unintended consequences or introduce potential market distortions’.
19.151 In this context, stakeholders referred to the deliberations of the Simulcast Inquiry, which in its report emphasised that reform at the intersection of copyright and broadcasting should not be dealt with in a piecemeal way.
19.152 The Simulcast Inquiry recommended that, following receipt of this ALRC Report, 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’.
19.153 In this context, the ALRC suggests that some of the broadcast exceptions should be repealed on the basis that relevant uses are likely to be covered by the fair use or new fair dealing exception, or are amenable to voluntary licensing. In these cases, removing exceptions may:
better acknowledge creators’ rights and maintain incentives by removing unnecessary exceptions and facilitating voluntary licensing; and
advance technological neutrality and innovation by removing exceptions that apply only to broadcast but not other forms of communication to the public.
19.154 Despite the complexities, the extension of some statutory licensing schemes to the transmission of linear television or radio programs using the internet should be considered, in order to ensure these licences continue to serve their purpose in an era of media convergence.
Recommendation 19–1 In developing media and communications policy, and in responding to media convergence, the Australian Government should consider whether the following exceptions in the Copyright Act should be repealed:
(a) s 45—broadcast of extracts of works;
(b) ss 47, 70 and 107—reproduction for broadcasting;
(c) s 109—broadcasting of sound recordings;
(d) ss 65 and 67—incidental broadcast of artistic works; and
(e) s 199—reception of broadcasts.
Recommendation 19–2 The Australian Government should also consider whether the following exceptions should be amended to extend to the transmission of linear television or radio programs using the internet or other forms of communication to the public:
(a) s 47A—sound broadcasting by holders of a print disability radio licence; and
(b) pt VA—copying of broadcasts by educational institutions.