04.06.2013
15.1 Subscription television companies and other media content providers may wish to retransmit free-to-air television and radio broadcasts to their own customers—that is, to provide the content contained in broadcasts by other means, such as cable or satellite transmission, in a simultaneous and unaltered manner.
15.2 The Copyright Act 1968 (Cth) and the Broadcasting Services Act 1992 (Cth) effectively operate to provide, in relation to the retransmission of free-to-air broadcasts:
a free-use exception in relation to broadcast copyright;
a free-use exception in relation to copyright in the underlying works or other subject matter (underlying rights), applying to retransmission by self-help providers; and
a remunerated exception in relation to underlying rights, which does not apply to retransmission that ‘takes place over the internet’.
15.3 This chapter examines these exceptions (the retransmission scheme) and whether they are adequate and appropriate in the digital environment. This raises complex questions at the intersection of copyright and communications and media policy. The options for reform are largely dependent on assumptions about matters not within the ALRC’s remit, including:
the exclusive rights covered by broadcast copyright, or other protection of broadcast signals;
the extent to which retransmission of free-to-air television and radio broadcasts still needs to be facilitated in a converging media environment; and
the extent to which it remains important to maintain geographical limits on the communication of free-to-air broadcasts.
15.4 For this reason, the chapter presents alternative sets of proposals. The first option would involve the repeal of both the free-use exception applying to broadcast copyright and the remunerated exception in relation to underlying rights (Option 1). This would effectively leave the extent to which retransmission occurs entirely to negotiation between the parties—broadcasters, retransmitters and underlying copyright holders.
15.5 The second option would be to replace the free-use exception for broadcast copyright with a remunerated exception, similar to that which would continue to apply to the underlying rights (Option 2). This would continue the existing retransmission scheme while providing some recognition for broadcast copyright.
15.6 If Option 2 is chosen, or the existing retransmission scheme is retained, the ALRC proposes that retransmission ‘over the internet’ should no longer be excluded from the scheme, which should apply to retransmission by any technique, subject to geographical limits on reception. However, if the internet exclusion is to remain, its scope and application should be clarified.
15.7 Finally, the chapter examines ‘must carry’ obligations and concludes that the ALRC should make no proposal on whether free-to-air broadcasters should have the option of requiring that free-to-air broadcasts be retransmitted on subscription cable or other platforms.