The link with communications regulation

19.21 Extending the scope of the broadcast exceptions to take account of new technologies is not a new phenomenon. Prior to the Copyright Amendment (Digital Agenda) Act 2000 (Cth), ‘broadcast’ was defined as to ‘transmit by wireless telegraphy to the public’. The digital agenda legislation substituted an extended technology-neutral definition, mainly to cover cable transmissions.

19.22 This extension occurred in the context of the enactment of a new right of communication to the public, replacing and extending the existing broadcasting and cable diffusion rights.[19] A definition of ‘broadcast’ was retained, however, because the Government ‘decided to retain most of the existing statutory licences and exceptions in the Act in relation to broadcasting and not extend these licences to apply in relation to communication’.[20]

19.23 The distinction between broadcasts and other electronic communication to the public in the Copyright Act comes about indirectly, by virtue of the ministerial determination made under the Broadcasting Services Act. The determination has implications for the coverage of licence fee requirements, local content requirements, programming standards and advertising restrictions. Arguably, the implications for copyright law were very much a secondary consideration.

19.24 The Government decision not to extend the scope of exceptions was consistent with earlier conclusions of the CLRC. In 1999, the CLRC considered how the Government’s proposed digital agenda reforms should address whether exceptions should extend beyond communications to the public delivered by a broadcasting service.[21]

19.25 The CLRC recommended specifically that the ephemeral copying provisions[22] should not be further extended (beyond cable transmission). In reaching this conclusion, the CLRC noted that these exceptions operate for the benefit of those broadcasters ‘who have paid for the right to broadcast the copyright materials used in their broadcast programs’.[23] As the makers of other transmissions to the public were ‘not technically broadcasters’, the CLRC stated that ‘there is presently no obligation for them to obtain a licence for the transmission of the copyright materials they use’. Accordingly, the CLRC considered that extending the ephemeral copying provisions to the makers of such transmissions was not justified.[24]

19.26 Since the digital agenda reforms in 2000, however, internet transmission is clearly an exclusive right covered by copyright. A continuing link between the scope of some copyright exceptions and the regulatory definition of a broadcasting service under the Broadcasting Services Act may be unnecessary. While a broadcasting service may have additional obligations to comply with copyright law—for example, under broadcasting licence conditions—other content providers still need to obtain permission to communicate the copyright material of others over the internet.[25]

19.27 The reasons for excluding internet transmission from the definition of broadcasting services included that the business models for internet content providers might be significantly different from those of traditional broadcasters, and that broadcast licensing would lead to a competitive disadvantage for Australian content providers and impede the growth of alternatives to traditional broadcasting.[26]

19.28 While the exclusion of internet content services from Broadcasting Services Act regulation may promote competition and innovation in broadcasting, it may have an unintended and opposite effect in the copyright context—by privileging traditional broadcast over internet transmission.

19.29 Some stakeholders questioned the need for the continuing link between the scope of copyright exceptions and the Broadcasting Services Act.[27] The Internet Industry Association, for example, submitted that ‘the regulation of broadcast services should be separate and unrelated to whether or not copyright subsists in a transmission’.[28]

19.30 The PPCA suggested that the ALRC should consider the ‘decoupling of Australian broadcasting and copyright laws’ by recommending a stand-alone definition of broadcasting in the Copyright Act.[29] Screenrights also considered that copyright policy should not be left subject to communications policy. Instead ‘the definition of broadcasting service should be imported into the Copyright Act in essentially its current form (including the effect of the Ministerial declaration) so as to minimize disruption of existing rights and exceptions’.[30]