Exceptions for persons using broadcasts

16.65 Sections 135ZT, 199, 200 and pt VA operate to provide exceptions for the benefit of persons receiving, communicating or making a record of a broadcast. The references to ‘broadcast’ in these sections serve to limit the application of these sections to broadcasts made by content providers that are broadcasting services for the purposes of the Broadcasting Services Act.

16.66 This means that people are sometimes required to draw distinctions between broadcasts and other audiovisual content, including internet content—or infringe copyright laws by inadvertently treating broadcast and other content in the same manner. Justifications for the continuing existence of exceptions for persons using broadcasts are most likely to centre on assumptions that broadcast retains a special place in the media landscape.

Reception of broadcasts

Example: A supermarket plays radio broadcasts for the entertainment of its customers.

16.67 Section 199 provides free-use exceptions in relation to the reception of broadcasts of works, sound recordings and films. Essentially, the effect of these provisions is that enterprises such as pubs, supermarkets and other shops are permitted to play radio or television broadcasts without infringing copyright.

16.68 Under s 199(1), where an extract from a literary or dramatic work is broadcast, a person who, by receiving the broadcast causes the work to be performed in public, does not infringe copyright in the work.

16.69 Section 199(2) provides that where a person, by receiving a television or sound broadcast, causes a sound recording to be heard in public, there is no infringement of copyright in the sound recording. However, while the supermarket (in the example above) need not license the right to play the sound recording, it must still obtain a licence to use the underlying musical works.

16.70 Section 199(3) provides that where a person, by receiving an authorised television broadcast, causes a film to be seen in public, the person is to be treated as if the holder of a licence granted by the owner of the copyright to show the film.

16.71 The meaning of the term ‘broadcast’ in s 199 is narrower than in the case of some of the other exceptions, being restricted to broadcasts made by the ABC, SBS, holders of broadcasting licences, or persons authorised by class licences, under the Broadcasting Services Act.[53]

16.72 The policy behind the exception appears to be that it is reasonable to allow the reception of broadcasts in public, as it would be impractical to control this form of communication. This rationale seems to apply equally to similar content that is transmitted using the internet. The ALRC proposes that s 199 should be amended to apply to the transmission of television or radio programs using the internet.

Use of broadcasts for educational purposes

Example: A high school records a public radio broadcast for schools in order to replay the broadcast in the classroom at a later time.

16.73 Section 200(2) provides a free-use exception in relation to making a record of a sound broadcast, for educational purposes, being a broadcast intended to be used for educational purposes.

16.74 This exception is expressly permitted by the Rome Convention, which states that domestic laws and regulations may provide for exceptions as regards ‘use solely for the purposes of teaching or scientific research’.[54]

16.75 The rationale for allowing free use of educational radio broadcasts, under s 200(2), but not in relation to internet radio is not clear. However, the ALRC would expect that the use of a recording of a radio broadcast for educational purposes would be covered by the proposed new fair use exception.[55] In Chapter 13, the ALRC proposes that s 200 be repealed, if fair use is enacted.

Copying of broadcasts by educational institutions

Example: A university records a television broadcast of a film for use in film studies classes.

16.76 Part VA provides a statutory licensing scheme[56] applying to the copying and communication of broadcasts by educational institutions and institutions assisting persons with an intellectual disability, as long as this is for one of the authorised statutory purposes.

16.77 The Copyright Amendment Act 2006 (Cth) extended the pt VA licensing scheme, pursuant to s 135C(1), to apply to ‘a communication of the content of a free-to-air broadcast, by the broadcaster making the content available online at or after the time of the broadcast’.

16.78 The Explanatory Memorandum explained that this provision responded to ‘the increasing trend of broadcasters making the content of their broadcast material available online, either simultaneously or at a later time (eg, through services commonly referred to as webcasting or podcasting)’.[57] Ricketson and Creswell state:

This extension caters for the possibility that the owners of copyright in the content of a broadcast, in agreeing to its being made available online as a podcast, may not have agreed to license more than downloading for the private listening/viewing by the downloader; that is they may not have expressly or impliedly licensed the downloader to communicate the content to the public or play/show it in public.[58]

16.79 Given that the copyright owners have authorised downloading for consumption by the downloader, who could be a student watching or listening to the podcast in connection with his or her studies, s 135C ‘sensibly allows educational institutions to facilitate that activity’.[59]

16.80 Part VA is often referred to in schools as the ‘statutory broadcast licence’ and permits educational institutions to copy radio and television programs, including programs from free-to-air broadcasters and satellite and subscription radio and television. Educational institutions can also copy and communicate podcasts and webcasts that originated as free-to-air broadcasts and which are available on the broadcaster’s website.[60]

16.81 A number of stakeholders expressly identified the existing definition of broadcast as being problematic in the context of the pt VA scheme.[61] The Copyright Advisory Group—Schools (the Schools), for example, observed that the concept of a broadcast ‘underpins the entire operation of the Part VA statutory licence’ and highlighted the implications for the pt VA scheme of media convergence, and possible future changes in media and communications regulation resulting from the Australian Government’s Convergence Review.[62]

16.82 The Schools stated that, while pt VA applies to broadcasts and to some free-to-air broadcasts made available online, under the current Copyright Act definition of broadcast

many types of content such as communications delivered via internet protocol television (IPTV), the majority of online content such as ‘made for internet’ content, YouTube videos etc are currently excluded from the Part VA licence.[63]

16.83 The Schools observed that changes to the definition of broadcast resulting from the Convergence Review could potentially expand the scope of the statutory licence, for example, to all forms of audiovisual content ‘irrespective of the mode or delivery or original point of distribution’; extinguish the pt VA licence completely; or require ‘a complete re-examination of the need for, and appropriate scope of, the Part VA licence in a converged media environment’.[64]

16.84 Screenrights stated that the exclusion of transmissions over the internet from the definition of broadcast creates ‘an unnecessarily complicated distinction for educators’ and submitted that the scheme should be amended to ‘enable the copying of linear television and radio transmissions over the internet’. This, it was suggested, might be done by inserting an expanded definition of ‘broadcast’ into s 135A or by amending s 135C, which already gives pt VA an extended operation.[65]

16.85 The Society of University Lawyers submitted that pt VA is not adequate or appropriate in the digital environment because it excludes ‘internet transmissions or internet-only content uploaded by television or radio broadcasters’, despite the fact that such content, and the use of tablets rather than television, are becoming more common.[66]

16.86 The ALRC proposes the repeal of the pt VA statutory licensing scheme, because voluntary licences appear to be more efficient and better suited to a digital age.[67] However, if pt VA is not repealed, the ALRC proposes that, like other exceptions discussed above, the scheme should be amended to apply to the transmission of television or radio programs using the internet.

[53]Copyright Act 1968 (Cth) s 199(7).

[54]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)(d).

[55] See Ch 4.

[56] Screenrights is the declared collecting society administering the pt VA statutory licensing scheme.

[57] Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth), [8.5].

[58] Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [12.210].

[59] Ibid, [12.210].

[60] Copyright Advisory Group—Schools, Submission 231.

[61] Ibid; Screenrights, Submission 215; Arts Law Centre of Australia, Submission 171; R Wright, Submission 167; Society of University Lawyers, Submission 158.

[62] The Convergence Review Committee was established to examine the operation of media and communications 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: Australian Government Convergence Review, Convergence Review Final Report (2012), vii.

[63] Copyright Advisory Group—Schools, Submission 231.

[64] Ibid. See also Copyright Advisory Group—TAFE, Submission 230.

[65] Screenrights, Submission 215.

[66] Society of University Lawyers, Submission 158.

[67] See Ch 6. In Ch 13, the ALRC also proposes the repeal of s 200.