The link with communications regulation

16.21 Extending the scope of the broadcast exceptions to take account of new technologies is not a new phenomenon. Prior to the Copyright Amendment (Digital Agenda) Act 2000 (Cth), ‘broadcast’ was defined as to ‘transmit by wireless telegraphy to the public’. The digital agenda legislation substituted an extended technology-neutral definition, mainly in order to cover cable transmissions.

16.22 This extension occurred in the context of the enactment of a new right of communication to the public, replacing and extending the existing broadcasting and cable diffusion rights.[20] A definition of ‘broadcast’ was retained, however, because the Government ‘decided to retain most of the existing statutory licences and exceptions in the Act in relation to broadcasting and not extend these licences to apply in relation to communication’.[21]

16.23 The distinction between broadcasts by broadcasting services and other electronic communication to the public in the Copyright Act comes about indirectly, by virtue of a ministerial determination made under the Broadcasting Services Act—for purposes that include the coverage of licence fee requirements, local content requirements, programming standards and advertising restrictions.

16.24 The Government decision not to extend the scope of exceptions was consistent with earlier conclusions of the Copyright Law Review Committee (CLRC). The CLRC had considered how the Government’s proposed digital agenda reforms should address whether exceptions should extend beyond communications to the public delivered by a broadcasting service.[22]

16.25 The CLRC recommended specifically that the ephemeral rights provisions[23] should not be further extended (beyond cable transmission). In reaching this conclusion, the CLRC noted that these exceptions operate for the benefit of those broadcasters ‘who have paid for the right to broadcast the copyright materials used in their broadcast programs’.[24] As the makers of other transmissions to the public were ‘not technically broadcasters’, the CLRC stated that

A consequence of this is that there is presently no obligation for them to obtain a licence for the transmission of the copyright materials they use. Accordingly, the Committee is of the view that extending the ephemeral copying provisions to the makers of such transmissions is not justified.[25]

16.26 Similarly, in relation to s 199, the CLRC contrasted broadcasters licensed under the Broadcasting Services Act and other content providers, stating that the latter are

presently not required to obtain a licence from copyright owners. Accordingly, no fee is paid that can be characterised as compensating copyright owners for the subsequent public performance of their materials by persons who receive those transmissions. For this reason, the scope of s 199(1), (2) and (3) should continue to be confined to licensed broadcasts.[26]

16.27 Since the digital agenda reforms, however, internet transmission is clearly an exclusive right covered by copyright. A continuing link between the scope of some copyright exceptions and the regulatory definition of a broadcasting service under the Broadcasting Services Act may be unnecessary. While a broadcasting service may have additional obligations to comply with copyright law—for example, under broadcasting licence conditions—this does not mean that other content providers are not obliged by copyright law to obtain licences to communicate copyright materials over the internet.[27]

16.28 The reasons for excluding internet transmission from the definition of broadcasting services included that the business models for internet content providers might be significantly different from those of traditional broadcasters; and that licensing would lead to a competitive disadvantage for Australian content providers and might impede the growth of alternatives to traditional broadcasting.[28]

16.29 While the exclusion of internet content services from Broadcasting Services Act regulation may promote competition and innovation in broadcasting, it may have had an unintended and opposite effect in the copyright context—privileging traditional broadcast over internet transmission.

16.30 Another reason to remove the link with the Broadcasting Services Act is that media and communications regulation is itself undergoing significant review. This is the case most notably in relation to broadcast licensing, where the Convergence Review has recommended that geographically-based licences no longer be required to provide content services.[29] At the least, this seems to indicate that the ‘licensed broadcaster’ criteria in ss 47A, 109 and 152 may require review.

[20]Copyright Act 1968 (Cth) s 31(1)(a)(iv), (b)(iii) inserted by the Copyright Amendment (Digital Agenda) Act 2000 (Cth).

[21] Explanatory Memorandum, Copyright Amendment (Digital Agenda) Bill 1999 (Cth), Notes on clauses, [7].

[22] Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 2: Categorisation of Subject Matter and Exclusive Rights, and Other Issues (1999), [7.103]–[7.105].

[23]Copyright Act 1968 (Cth) ss 47, 70, 107.

[24] Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 2: Categorisation of Subject Matter and Exclusive Rights, and Other Issues (1999), [7.105].

[25] Ibid, [7.105].

[26] Ibid, [7.72].

[27] While internet-only media are not regulated as broadcasting services, they are subject to content regulation under Broadcasting Services Act 1992 (Cth) schs 5, 7.

[28] See D Brennan, ‘Is IPTV an Internet Service under Australian Broadcasting and Copyright Law?’ (2012) 60(2) Telecommunications Journal of Australia 26.1, 26.6–26.7; Department of Communications, Information Technology and the Arts, Report to Parliament: Review of Audio and Video Streaming over the Internet (2000).

[29] See Australian Government Convergence Review, Convergence Review Final Report (2012), ch 1, rec 2.