16.31 Sections 45, 47A, 47, 70, 107, 67 and 109 operate to provide exceptions for persons engaged in making broadcasts. In effect, the definitions of ‘broadcast’ and ‘broadcasting’ in these sections serve to limit the availability of these exceptions to broadcasting services, as defined by the Broadcasting Services Act. They provide broadcasting services with advantages as compared with other content providers who provide content over the internet. The provisions may also operate as a barrier to broadcasters using the internet as an alternative platform for communicating their own content.
16.32 In considering exceptions for broadcasters, the issues include whether:
a justification remains for an exception currently applying to broadcasters; and
media content providers other than licensed broadcasters should have a ‘level copyright playing field’.
16.33 As discussed in Chapter 15, copyright law has longstanding links with communications regulation, which has tended to emphasise the ‘special’ place of broadcasting in the media landscape. To some extent, the scope of some broadcast exceptions may reflect the special characteristics of broadcasts, particularly free-to-air broadcasts, in terms of their ubiquity and market or cultural penetration.
Broadcast of extracts of works
Example: A radio interview with an author from the Melbourne Writers Festival is interspersed with a reading of an extract from the writer’s book.
16.34 Section 45 provides a free-use exception for reading or recitation of a literary or dramatic work in public or for a broadcast, of a reasonable length, with sufficient acknowledgement. The Spicer Committee’s original justification for the s 45 exception was that:
Recitations of reasonable extracts of works in public halls have for many years been regarded as a legitimate exception to copyright protection and it seems to us that the broadcasting of such recitations is the modern successor to that form of entertainment.
16.35 Obviously, it is equally possible to see other forms of communication to the public, including on the internet, as the ‘modern successor’ to recitations in public halls.
16.36 However, many uses covered by s 45 would be covered by fair dealing for the purposes of criticism or review, and reporting news; and by the proposed new fair use or quotation exceptions—although this would depend on the application of the fairness factors in the particular circumstances. The ALRC proposes that s 45 be repealed, if fair use is enacted.
Reproduction for broadcasting
Example: A television station makes a recording of a variety show it has produced, because a pre-recorded version of the program is to be broadcast.
16.37 Section 47(1) provides a free-use exception that applies where, in order for a work to be broadcast, a copy of the work needs to be made in the form of a record or film to facilitate the broadcasting. Sections 70(1) and 107(1) provide similar exceptions, in relation to films of artistic works and sound recordings, respectively.
16.38 The exceptions cover copying ‘to make the actual broadcast technically easier, or to enable the making of repeat or subsequent broadcasts’ and can be seen as promoting efficiency in broadcast programming.
16.39 These exceptions are expressly permitted by the Rome Convention, which states that domestic laws and regulations may provide for exceptions as regards ‘ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts’.
Example: A television station makes a recording of a televised play made by an outside producer, in order to broadcast the play at a later time.
16.40 Sections 47(3), 70(3) and 107(3) provide similar exceptions, subject to a statutory licensing scheme, for the temporary copying of works, films of artistic works and sound recordings by a broadcaster, other than the maker of the work, film or recording, for the purpose of broadcasting.
16.41 The licences do not apply unless all the records embodying the recording or all copies are, within 12 months of the day on which the work, film or sound recording is first used for broadcasting, destroyed or transferred to the National Archives of Australia.
16.42 There seems no reason, however, why these exceptions should not apply, for example, to temporary copying to facilitate the streaming of content over the internet, especially where the user is a broadcasting service that also provides content over the internet. The ALRC proposes that ss 47, 70 and 107 should be amended to apply to the transmission of television or radio programs using the internet.
Sound broadcasting by holders of a print disability radio licence
Example: A book is read aloud on a print disability radio station.
16.43 Section 47A provides exceptions, subject to a statutory licensing scheme, for sound broadcasting by holders of a print disability radio licence.
16.44 The exception covers the making of sound broadcasts of a published literary or dramatic work, or of an adaptation of such a work, where this is done by the holder of a print disability radio licence, in force under the Broadcasting Services Act or the Radiocommunications Act 1992 (Cth).
16.45 Print disability radio licences are granted for the purpose of authorising the making of sound broadcasts to persons who by reason of old age, disability or literacy problems are unable to handle books or newspapers or to read or comprehend written material. In practice, this requirement is met by the granting of community radio licences with these conditions, and Radio for the Print Handicapped broadcasts from stations in most capital cities.
16.46 There may be no reason not to facilitate the provision of radio programs for the print disabled over the internet as well, through access to a statutory licence, and perhaps subject to appropriate geographical limits on reception. The ALRC proposes that s 47A should be amended to apply to the transmission of radio programs using the internet, if this statutory licensing scheme remains.
Incidental broadcast of artistic works
Example: A television documentary about an art gallery shows paintings and sculptures in the background of a person being interviewed.
16.47 Section 67 provides a free-use exception for the inclusion of an artistic work in a film or television broadcast where its inclusion is only incidental to the principal matters represented in the film or broadcast.
16.48 The policy behind the exception appears to be that it is reasonable to allow the incidental inclusion of these works in a broadcast, as it would be impractical to control this form of copying. This rationale seems to apply equally to the incidental inclusion of works in internet transmission or other forms of communication to the public.
16.49 The ALRC would expect that most incidental uses covered by s 67 would be covered by the proposed new fair use exception—although this would depend on the application of the fairness factors in the particular circumstances. An industry practice of licensing incidentally captured music for documentary films, for example, may weigh against fair use. The ALRC proposes that s 67 be repealed, if fair use is enacted.
Broadcasting of sound recordings
Example: A radio station broadcasts recordings of popular music.
16.50 Section 109 provides an exception, subject to a statutory licensing scheme, for the broadcasting of published sound recordings, to facilitate access by broadcasters to published sound recording repertoire. It provides that copyright in a published sound recording is not infringed by the making of a broadcast (other than a broadcast transmitted for a fee), if remuneration is paid by the maker of the broadcast to the copyright owners in accordance with the scheme. The Phonographic Performance Company of Australia Limited (PPCA) is the organisation that administers the licensing of the broadcast rights in sound recordings.
16.51 The owner of the copyright in a published sound recording or a broadcaster may apply to the Copyright Tribunal for an order determining the amount payable by the broadcaster to the copyright owner in respect of the broadcasting of the recordings.
16.52 Broadcast radio stations are able to use the s 109 statutory licensing scheme to obtain rights to broadcast music and other sound recordings, but internet radio services are not—at least where they are not broadcasting services for the purposes of the Broadcasting Services Act. Rather, internet radio services must negotiate rights to transmit sound recordings outside the scheme.
16.53 A further complexity arises in relation to internet simulcasts, where radio stations, which are broadcasting services, commonly stream content simultaneously on the internet that is identical to their terrestrial broadcasts. In Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited (PPCA v CRA), the Full Court of the Federal Court held that, in doing so, a radio station was acting outside the terms of its statutory licence, as internet streaming is not a ‘broadcast’.
16.54 While the case concerned the interpretation of a licensing agreement to broadcast sound recordings, it was agreed between the parties that the term ‘broadcast’ in the agreement was to be understood as having the meaning specified in the Copyright Act. The Court held that ‘the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet’.
16.55 Broadcast radio stations, like internet radio services, will now have to negotiate separate agreements with the relevant collecting society (the PPCA) to stream the same content for which they have already obtained a statutory licence to broadcast. The implications of this case have to be considered in the context of the s 152 ‘one per cent cap’, which makes access to statutory licensing under s 109 more desirable for radio stations. The one per cent cap is discussed further below.
16.56 After the decision in PPCA v CRA, the Senate Environment and Communications References Committee was asked to examine the effectiveness of current regulatory arrangements (under the Broadcasting Services Act and the Copyright Act) in dealing with simulcasts, including the impact of current regulation on broadcasters and copyright holders. The Committee was due to report by 1 June 2013.
16.57 Pandora Media submitted that the absence of a statutory licensing scheme covering all forms of ‘online radio’ may create an ‘unnecessary and unjustified barrier to market entry for those creating and launching new innovative online services’. It suggested that either the existing statutory licensing scheme for broadcasters should be extended to include online licences, or a new scheme created for such services. In Pandora’s view, direct licensing is not a practical alternative because of the breadth of licensing required, the costs involved in negotiating separate licensing agreements, limitations on the rights granted to the PPCA by record companies and unsatisfactory dispute resolution procedures.
16.58 The Australian position was compared with that in the United States, where internet radio services operate pursuant to statutory licences under the Copyright Act 1976 (US). The United States statutory licensing scheme covers the performance of sound recordings publicly by means of a ‘digital audio transmission’, including by subscription services.
16.59 Pandora submitted that the differences in these legal frameworks with respect to internet radio, works to
impede the introduction into Australia of new and innovative business models, imposes unnecessary costs and inefficiencies upon those wanting to access or make use of copyright material and places Australia at a competitive disadvantage internationally.
16.60 Commercial Radio Australia (CRA) stated that ‘an increasing proportion of listeners choose to access commercial radio through an online platform’ and submitted that, in an ‘era of convergence, it no longer makes sense to require different copyright clearances for different platforms’. However, the concerns of CRA related more to the position of existing broadcasters simulcasting online, and the implications of the PPCA v CRA case, than to barriers to new internet-only radio services. CRA observed that if, as a result of the case, the same radio program were to be ‘subject to different regulation, depending on the platform of transmission, then this would be a huge barrier to innovation and use of the internet as a means of reaching a wider audience’.
16.61 The ABC also considered that statutory licences generally should ‘cover online communications at least by way of streaming’. The ABC submitted, in particular, that it should be made clear in the drafting of statutory licences that they extend to online simulcasts.
16.62 Reform to broaden the communication technologies covered by the broadcast exceptions may be justified in order to encourage innovation and competition, and respond to technological change. The availability of the statutory licensing scheme for radio broadcasters seems to provide them with a competitive advantage over internet radio services.
16.63 In the context of media convergence, the continuing distinction between broadcasts and other electronic communications to the public in relation to copyright exceptions seems difficult to justify. There may be no reason, in copyright policy terms, why radio broadcasters should have access to a statutory licensing scheme under s 109, while internet radio services are required to negotiate licences with collecting societies to transmit sound recordings.
16.64 The ALRC proposes that the s 109 statutory licensing scheme should be amended to apply to the transmission of television or radio programs using the internet.
 Copyright Law Review Committee, Report to Consider What Alterations are Desirable in the Copyright Law of the Commonwealth (1959), .
Copyright Act 1968 (Cth) ss 41, 42.
 See Chs 4, 10.
 Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [11.225].
 Australian Copyright Council, Exceptions to Copyright, Information Sheet G121v01 (2012), 7.
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(1)(c).
Copyright Act 1968 (Cth) ss 47(5), 70(5), 107(5).
 See Ibid s 47A(11).
 See Ibid.
 Australian Copyright Council, Disabilities: Copyright Provisions Information Sheet G060v08 (2012).
 In relation to the ‘geoblocking’ of internet transmissions, see Ch 15.
 See Ch 4. For example, in the US, fair use was found where a television film crew covering an Italian festival in Manhattan recorded a band playing a portion of a song, which was replayed during a news broadcast. In concluding that this activity was a fair use, the court considered that only a portion of the song was used, it was incidental to the news event, and it did not result in any actual damage to the composer or to the market for the work: Italian Book Corp v American Broadcasting Co, 458 F Supp 65 (SDNY, 1978).
 The statutory licensing scheme does not apply to a broadcast transmitted for a fee payable to the broadcaster: Copyright Act 1968 (Cth) s 109(1). Ricketson and Creswell state that it ‘was evidently felt that subscription broadcasters did not need the same help in accessing and making use of sound recordings as free-to-air broadcasters’: Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [12.245].
 For these purposes, a ‘broadcaster’ is defined as meaning the ABC, the SBS, the holder of a licence or a person making a broadcast under the authority of a class licence under the Broadcasting Services Act: Copyright Act 1968 (Cth) s 152(1).
Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited  FCAFC 11. An application for special leave to appeal this decision to the High Court was filed in March 2013.
 Pandora Media Inc, Submission 104.
Copyright Act 1976 (US) s 114(d)(1), (2). US law does not, however, recognise a terrestrial broadcast performance right for sound recordings, so has no equivalent to Copyright Act 1968 (Cth) s 109. That is, in the US, broadcast radio is the only medium that transmits music but does not compensate artists or labels for the performance.
 Pandora Media Inc, Submission 104.
 Commercial Radio Australia, Submission 132.
 Australian Broadcasting Corporation, Submission 210.