Assumptions and options for reform

15.29 Options for reform are, however, largely dependent on assumptions about matters not within the scope of the ALRC’s Inquiry.

15.30 First, reform of the retransmission scheme raises threshold questions about what exclusive rights should be covered by broadcast copyright. That is, what copyright or other protection should be extended to broadcasts in the first place?

15.31 As discussed above, in Australia, broadcasters are provided with broader protection than required internationally, as the Rome Convention does not require copyright protection, as such, for broadcasts.

15.32 The Rome Convention provides permitted exceptions to broadcast protection, which include: private use; the use of short excerpts in connection with the reporting of current events; ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; and use solely for the purposes of teaching or scientific research.[34] Signatories may also provide for the same kinds of limitations with regard to the protection of broadcasting organisations as domestic law provides ‘in connection with the protection of copyright in literary and artistic works’.[35]

15.33 From this perspective, options for reform can be seen as relatively unconstrained, in copyright policy terms, because the Rome Convention does not require broadcast copyright, and allows a series of exceptions not found in the Berne Convention.[36] Arguably, the nature of broadcast rights can justify anomalous exceptions—that is, exceptions that do not apply to other subject matter.

15.34 On the other hand, having extended copyright to broadcasts, there are arguments that the exclusive rights applying to broadcasts should be similar to those applying to other subject matter. Arguably, the free-use exception for retransmission would not comply with the ‘three-step test’ under the Berne Convention and other international copyright conventions,[37] if this test applied to broadcast, because it removes broadcast copyright protection without permission or remuneration, conflicting with normal exploitation of the work and unreasonably prejudicing the legitimate interests of the broadcaster.

15.35 The scope of broadcast copyright has long been tied up with debates regarding communications policy, including:

the facilitation of the subscription television industry, ensuring access to broadcasts in remote areas, and the introduction of digital and high-definition technologies. The desire to promote these goals of broadcast policy has led to broadcasters being denied certain rights they might, as copyright owners, expect to have.[38]

15.36 Copyright law has longstanding links with communications regulation, which has tended to emphasise the ‘special’ place of broadcasting in the media landscape. The Copyright Act contains, for example, many free-use and remunerated exceptions that take the circumstances of the broadcasting industry into account, including the statutory licensing scheme for radio broadcast of sound recordings and other exceptions discussed in Chapter 16.

15.37 Historically, regulators have pursued a range of public policy goals in relation to broadcasting, such as ensuring universal public access, minimum content standards (including classification and local content rules), diversity of ownership, competition and technological innovation.[39]

15.38 The retransmission scheme, in facilitating access to free-to-air broadcasts across media platforms, was intended to serve at least some of these public policy goals. The extent to which retransmission remains important may, however, be questioned in light of the convergence of media content and communications technologies. For example, if television audiences fragment across a multiplicity of broadcast, cable and online programming, or there is a move away from licensing media content providers, the case for a retransmission scheme that qualifies ordinary copyright principles may be weaker.

15.39 The retransmission scheme can be seen as favouring certain commercial interests in the communications and media markets. At present, subscription television providers do not need to license broadcast copyright when retransmitting free-to-air broadcasts, which advantages them by removing the need to negotiate rights with broadcasters. Similarly, cable and satellite subscription television providers have an advantage over internet content providers in being able to access the pt VC statutory licensing scheme for the underlying rights.

15.40 Whether the existing retransmission scheme produces good outcomes in terms of communications and competition policy is a matter beyond the scope of the ALRC’s Inquiry. Further, many aspects of communications and media regulation are under review, including as a response to the Convergence Review[40] and against the backdrop of the rollout of the National Broadband Network (NBN). In this context, the ALRC presents two options for reform. These options are based on two different sets of assumptions about the desirable scope of broadcast protection and the importance of retransmission.

[34]International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 26 October 1962, ATS 29 (entered into force on 18 May 1964) art 15. International protection of broadcasting organisations has been discussed at length at the World Intellectual Property Organization, by the Standing Committee on Copyright and Related Rights (SCCR). The issue of providing legal protection for broadcasting organisations against unauthorised use of broadcasts, including by retransmission on the internet has been retained on the Agenda of the SCCR for its regular sessions: World Intellectual Property Organization, Program Activites, Broadcasting Organizations <> at 24 April 2013.

[35]International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 26 October 1962, ATS 29 (entered into force on 18 May 1964) art 15(2).

[36]Berne Convention for the Protection of Literary and Artistic Works (Paris Act), opened for signature 24 July 1971, [1978] ATS 5 (entered into force on 15 December 1972).

[37] Ibid art 9(2), as incorporated in: Agreement on Trade-Related Aspects of Intellectual Property Rights, opened for signature 15 April 1994, ATS 38 (entered into force on 1 January 1995), art 13; World Intellectual Property Organization Copyright Treaty, opened for signature 20 December 1996, ATS 26 (entered into force on 6 March 2002) art 10; World Intellectual Property Organization Performances and Phonograms Treaty, opened for signature 20 December 1996, ATS 27 (entered into force on 20 May 2002) art 16; Australia-US Free Trade Agreement, 18 May 2004, [2005], ATS 1 (entered into force on 1 January 2005) art 17.4.10(a).

[38] K Weatherall, ‘The Impact of Copyright Treaties on Broadcast Policy’ in A Kenyon (ed) TV Futures: Digital Television Policy in Australia (2007) 242, 254.

[39] Ibid, 244.

[40] The Convergence Review Committee was established to examine the operation of communications and media regulation in Australia and assess its effectiveness in view of the convergence of media content and communications technologies. The Review covered a broad range of issues, including media ownership laws, media content standards, the ongoing production and distribution of Australian and local content, and the allocation of radiocommunications spectrum: see Australian Government Convergence Review, Convergence Review Final Report (2012).