History of the retransmission scheme

15.15 The Broadcasting Services Act, as originally enacted, contained special provisions for retransmission of programs, which provided an immunity against actions, suits or proceedings in respect of such retransmission, for persons other than broadcasting licensees.[8]

15.16 In 1999, amendments to the Broadcasting Services Act[9]changed the operation of the immunity so that it no longer applied to underlying rights, except where retransmission was provided by a ‘self-help provider’.[10] This meant that anybody retransmitting programs, other than a self-help provider, would infringe these rights unless retransmission was with the permission and remuneration of the underlying copyright holders.

15.17 The amending Bill in its original form would also have required retransmitters to seek the permission of the owners of copyright in broadcasts before retransmitting.[11] In 1998, the Australian Government announced that ‘new rules’ would be introduced to ‘correct an anomaly … which allowed pay TV operators to retransmit free-to-air television or radio signals without seeking the consent of the originating broadcaster’.[12] However, in the face of opposition to this requirement from the non-Government parties in the Parliament, the Government introduced an amendment that had the effect of overriding the requirement ‘while the Government resolves the outstanding issues through further consultation with industry’.[13]

15.18 The Berne Convention specifically allows signatories to implement a statutory licence applying to rebroadcast and retransmission of copyright works.[14] The Copyright Amendment (Digital Agenda) Act 2000 (Cth) introduced the pt VC statutory licensing scheme applying to underlying works.[15] The stated reason for implementing the licensing scheme was that ‘it would be impractical for retransmitters to negotiate with individual copyright owners in underlying copyright material to enable the retransmission of free-to-air broadcasts’.[16]

15.19 These provisions were inserted at the same time as the introduction of a new technology-neutral right of communication to the public.[17] This replaced and extended an existing re-broadcasting right, which only applied to ‘wireless’ broadcasts and not, for example, to cable or online communication.[18]

[8]Broadcasting Services Act 1992 (Cth) s 212(2) as enacted.

[9]Broadcasting Services Amendment Act (No.1) 1999 (Cth).

[10]Broadcasting Services Act 1992 (Cth) s 212(2A).

[11] Explanatory Memorandum, Broadcasting Services Amendment Bill 1998 (Cth).

[12] Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [11.350], quoting a joint media release of then Minister for Communications, the Information Economy and the Arts (the Hon Senator Richard Alston) and then Attorney-General (the Hon Daryl Williams AM QC MP), dated 10 March 1998.

[13] Ibid, [9.530], citing Attorney-General’s Department, AGD e-News on Copyright, No 11 (1999). See, also, the history of the retransmission exception set out in Free TV Australia, Submission 270: the retransmission exception ‘has long been recognised by industry and government as an unintended anomaly of broadcasting and copyright law’.

[14]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), art 11(bis)(2). Also World Intellectual Property Organization Copyright Treaty, opened for signature 20 December 1996, ATS 26 (entered into force on 6 March 2002) art 8.

[15]Copyright Amendment (Digital Agenda) Act 2000 (Cth); Copyright Act 1968 (Cth) pt VC.

[16] Explanatory Memorandum, Copyright Amendment (Digital Agenda) Bill 1999 (Cth), 6.

[17]Copyright Act 1968 (Cth) s 87.

[18] Ibid s 87(c), as enacted.