Option 1: Repeal of the retransmission scheme

15.41 Option 1 assumes that the retransmission of free-to-air television and radio broadcasts no longer needs to be facilitated in a converging media environment, and the extent to which retransmission occurs should be left to be determined by market mechanisms. In terms of the framing principles, this option would assume that the interest in promoting fair access to and wide dissemination of content (Principle 3) is no longer best served by the retransmission scheme.[41]

15.42 There are some indications suggesting that the retransmission scheme is no longer necessary. The scheme was originally intended to provide for the distribution of free-to-air broadcasts to areas which did not receive adequate reception. The regime facilitated self-help arrangements to enable individuals and communities to access free-to-air broadcasting services where the location or other reception difficulties meant that signal quality was not adequate or the signal was not available.[42]

15.43 With the introduction of subscription television into Australia in 1995, subscription television operators also began retransmitting the national and commercial television services as ‘free additions’ to their channels, without the permission or remuneration of either broadcasters or underlying rights holders.[43] While underlying rights holders are now remunerated under a statutory licensing scheme, the agreement or remuneration of the broadcaster is still not required, despite the extension of broadcast copyright in 2000.

15.44 To the extent that the purpose is to facilitate community access to free-to-air broadcasts, the retransmission scheme may no longer play a significant role apart from retransmission performed by organisations defined, since 1999, as self-help providers under the Broadcasting Services Act. Self-help providers do not have to remunerate either the free-to-air broadcaster or the underlying rights holders. The ALRC does not propose any change to the operation of free-use exceptions applying to retransmission by self-help providers. These exceptions appear to retain relevance[44] and there has been no indication that they require review.

15.45 In addition, since 2010, re-broadcast by ‘satellite BSA licensees’[45] has been authorised, subject to a separate statutory licensing scheme under the Copyright Act.[46] Under this scheme, the Australian Government-funded Viewer Access Satellite Television service provides free-to-air digital television channels to viewers with inadequate terrestrial reception.

15.46 A possible second purpose for the retransmission scheme may have been to assist in the early development of subscription television and to ensure competition in content provision across media platforms. If so, this rationale may no longer be relevant, given the market penetration of established subscription television services.

15.47 The retransmission scheme may simply provide subscription television platforms with additional content for their offerings at a lower cost than might be the case if a commercial agreement were required. Subscription television providers benefit commercially because they are able to provide free-to-air channels as part of their subscription packages without having to negotiate a commercial fee, or conditions, with broadcasters.[47]

Repeal of the free-use exception for broadcast copyright

15.48 The ALRC asked, in the Issues Paper, whether the retransmission of free-to-air broadcasts should continue to be allowed without the permission or remuneration of the broadcaster.[48]

15.49 Free-to-air broadcasters submitted that retransmission should be allowed to continue only with broadcasters’ permission. Reform to implement this position was seen as justified for a number of reasons.

15.50 First, stakeholders asserted that the rationale for the retransmission free-use exception for broadcast copyright no longer exists, except in the case of self-help providers.[49] Free TV, for example, submitted that s 212 of the Broadcasting Services Act was introduced specifically to allow retransmission by self-help providers and was never intended to allow new services to retransmit free-to-air broadcasts without authorisation.[50] Commercial Radio Australia (CRA) stated that, while a provision allowing retransmission to remote communities that would not otherwise receive the broadcast may be justified, in the digital era, a ‘blanket right for third parties to retransmit broadcasts’ is not.[51]

15.51 Secondly, stakeholders questioned the justification for recognising underlying rights but, effectively, not copyright in the broadcast itself.[52] CRA, for example, submitted that both the broadcast and the underlying works or other subject matter are creative products and there is no ‘reasonable basis for the current distinction between the protection of the underlying content and the broadcast’.[53] Free TV stated that broadcast copyright acknowledges the ‘creative and economic value of broadcasts’ and the ‘endeavours of a broadcaster in promoting, arranging and scheduling programming in a competitive commercial environment’. It also said that the retransmission free-use exception conflicts with the ‘three-step test’ under the Berne Convention.[54]

15.52 More generally, broadcasters had concerns about being unable to control the distribution of their broadcasts by competing platforms.[55] The Special Broadcasting Service (SBS), for example, referred to the need to ‘strengthen protections against uses of SBS’s broadcast signal by third parties which may affect the integrity of its presentation to viewers’.[56]

15.53 Allowing retransmission to be determined by consent would provide for the value to broadcasters and subscription television services of free-to-air broadcasts to be established through normal commercial negotiations between the two parties. This would give free-to-air broadcasters control over the commercial use of their signal, while allowing subscription television services the choice of which broadcasts they wish to retransmit, subject to the permission of the broadcaster.

15.54 At the same time, it would provide for the remuneration of free-to-air broadcasters where subscription television services were willing to pay for retransmission, while allowing them to decline to carry free-to-air broadcasts where the price is considered to be too high. In some cases, ‘it is possible that carriage of the signals themselves could become the established market price for retransmission’—that is, no remuneration would need to be paid in either direction.[57]

Repeal of the remunerated exception

15.55 If the free-use exception for broadcast copyright were repealed, so that the permission of the broadcaster is required for retransmission, this has implications for the operation of the remunerated exception—the statutory licensing scheme in pt VC of the Copyright Act.

15.56 If the free-use exception for broadcast copyright were repealed, this statutory licensing scheme would only come into effect if a market-based agreement were to be reached between a free-to-air broadcaster and a retransmitter. That is, if there is no agreement, there can be no retransmission and the need to remunerate underlying rights holders will not arise.

15.57 Further, if the free-use exception were repealed, while underlying rights holders would not directly determine whether retransmission is allowed, in practice, they may be able to prevent it, despite the existence of the pt VC licence. An underlying rights holder may condition licensing of their content for free-to-air broadcast on the basis that retransmission will not occur, or that retransmission only occur on, for example, linear subscription television but not other technologies, such as 3G or 4G mobile networks.

15.58 Significant content owners, such as major professional sports bodies, could impose such conditions in negotiations around the sale of exclusive broadcasting rights. Therefore, although retaining the pt VC statutory licence would mean that the retransmitter would not have to negotiate with all the underlying rights holders over retransmission, the broadcaster may have to negotiate in order for retransmission to be able to occur.

15.59 In practice, it is questionable whether a broadcaster would have any incentive to undertake those negotiations—particularly in relation to any retransmitter other than established subscription television, such as Foxtel. Further, free-to-air broadcasters might decide to permit retransmission of only some of their channels and, for example, exclude sports channels from retransmission. The situation could also become more complex over time—a broadcaster might agree to retransmission at one point in time, and be placed in difficult position later when subsequent underlying rights holders refuse to licence retransmission.

15.60 Rather than facilitating retransmission, retaining pt VC may simply make negotiating retransmission more complicated. These problems mean that, in the ALRC’s view, if the free-use exception is repealed, the remunerated exception for underlying rights should also be repealed, and retransmission left to be determined entirely by market mechanisms.

[41] See Ch 2.

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

[43] Ibid.

[44] The ACMA, in 2011–12, issued 417 broadcasting retransmission licences to regional councils and other self-help providers, mainly for television broadcasts: Australian Communications and Media Authority, Annual Report 2011–12 (2012).

[45] A ‘satellite BSA licensee’ means the licensee of a commercial television broadcasting licence allocated under Broadcasting Services Act 1992 (Cth) s 38C: Copyright Act 1968 (Cth) s 10.

[46]Copyright Act 1968 (Cth) pt VD.

[47] Free TV Australia, Submission 270.

[48] Australian Law Reform Commission, Copyright and the Digital Economy, IP 42 (2012), Question 35.

[49] Free TV Australia, Submission 270; Commercial Radio Australia, Submission 132; TVB (Australia) Pty Ltd, Submission 124.

[50] Free TV Australia, Submission 270.

[51] Commercial Radio Australia, Submission 132.

[52] Free TV Australia, Submission 270; Australian Writers’ Guild & Australian Writers’ Guild Authorship Collecting Society, Submission 265; Commercial Radio Australia, Submission 132.

[53] Commercial Radio Australia, Submission 132.

[54] Free TV Australia, Submission 270.

[55] Ibid.

[56] SBS, Submission 237.

[57] See Explanatory Memorandum, Broadcasting Services Amendment Bill 1998 (Cth), 13.