04.06.2013
16.7 The Copyright Act defines the term ‘broadcast’ to mean ‘a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act’.[2]
16.8 The Broadcasting Services Act defines a ‘broadcasting service’ to mean ‘a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means’. A broadcasting service does not include:
(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or
(c) a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.[3]
16.9 A ministerial determination, made in 2000 under the Broadcasting Services Act, excludes a ‘service that makes available television and radio programs using the internet’ from the definition of a broadcasting service.[4]
16.10 The primary reasons for the ministerial determination were to ensure that developing internet audio and video streaming services were not regulated as broadcasting services under the Broadcasting Services Act and to clarify the regulatory position of datacasting over broadcasting services bands.[5]
16.11 However, it also has a significant effect on the scope of the broadcast exceptions under the Copyright Act, as discussed below. Among other things, it means that while free-to-air and subscription cable and satellite television transmissions are covered, transmissions of television programs using the internet are not.[6]
[2]Copyright Act 1968 (Cth) s 10.
[3]Broadcasting Services Act 1992 (Cth) s 6.
[4]Commonwealth of Australia Gazette—Determination under Paragraph (c) of the Definition of ‘Broadcasting Service’, (No 1 of 2000), Commonwealth of Australia Gazette No GN 38, 27 September 2000.
[5] See Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited [2013] FCAFC 11, [52]–[46].
[6] While some forms of internet protocol television (IPTV) and internet radio are treated as broadcasting services under the Broadcasting Services Act, others are not—for example, where television-like content is delivered over an unmanaged network, such as broadband internet (‘over the top’). This is discussed in more detail in Ch 15.