The scope of amended exceptions

16.92 The ALRC proposes that the broadcast exceptions should be extended to apply to other forms of communication to the public, including internet transmissions. The intention of such a reform would be to promote fair access to and wide dissemination of content (Principle 3) through providing rules that are technologically neutral (Principle 4).[74]

16.93 The way in which reform should be implemented in practice, without unintended consequences, is a matter of some complexity. The ALRC would welcome further comment.

16.94 If the definition of broadcast is to be changed for the purposes of copyright exceptions, one obvious starting point seems to be the concept of ‘communication to the public’.[75] Copyright in relation to original works includes the exclusive right to ‘communicate the work to the public’[76] and, in relation to television and sound broadcasts, includes the exclusive right to ‘re-broadcast it or communicate it to the public otherwise than by broadcasting it’.[77]

16.95 ‘Communicate’ is defined as to ‘make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter including a performance or live performance within the meaning of this Act’.[78] Ricketson and Creswell describe this definition as having two branches:

passive and active, that reflect both ‘pull’ (interactive) and ‘push’ technologies: making available online (passive); and transmitting electronically by wire and/or wireless media (active).[79]

16.96 The broadcast exceptions are not, however, intended to extend to all content communicated to the public, such as content simply made available on demand. The existing scope of a broadcasting service excludes not only a service that makes available television and radio programs using the internet, but also ‘a service that makes programs available on demand on a point-to-point basis’.[80]

16.97 As discussed above, the scope of some broadcast exceptions may reflect the special characteristics of broadcasts. Some exceptions may, therefore, need to be extended only to the online equivalent of television programs or radio programs.[81] That may also mean that the scope of some exceptions—for example, s 199(1)—may need to be restricted to internet transmissions that are ‘streamed’ or in the traditional ‘linear’ form of broadcasting, rather than provided ‘on demand’. Such a restriction may not be appropriate, however, for the pt VA statutory licensing scheme (should it remain) as a broader range of online content may need to be included. Another alternative is to extend some broadcast exceptions only to content made available online by a free-to-air broadcaster, as is presently the case under pt VA.

16.98 The distinctions between linear and on-demand transmissions is a matter of some complexity, given changing business models. For example, one of the reasons for distinguishing between linear and on-demand internet transmission is that the linear communications are more like broadcasting to a mass public, and on-demand communications are more of a substitute for the purchase of personal copies of content. However, some services, including internet ‘radio’ services like Pandora, can be personalised to reflect the musical preferences of an individual. This kind of service, although linear in a sense, is also personalised and able to act as a substitute for a personal music collection.

16.99 The ALRC’s proposals will require further iteration in the final Report of this Inquiry in response to stakeholder feedback, and to be consistent with recommendations made in other areas.

16.100 Some of the broadcast exceptions, notably ss 45, 67 and 200(2), may be repealed as unnecessary—if a fair use exception is introduced. If the pt VA licensing scheme is removed, issues raised in relation to the definition of broadcast in that context would no longer be relevant.

16.101 The broadcast exceptions also raise issues that are not directly related to broadcasting but might be dealt with as part of the reform process. For example, it is not clear, in relation to s 199, why copyright in sound recordings, films and literary or dramatic works is covered, but not other subject matter, such as the script of a film. Arguably, s 199(2) and (3) should be amalgamated and the coverage of s 199 extended to all underlying copyright.

Proposal 16–1 The Copyright Act should be amended to ensure that the following exceptions (the ‘broadcast exceptions’), to the extent these exceptions are retained, also apply to the transmission of television or radio programs using the internet:

(a) s 45—broadcast of extracts of works;

(b) ss 47, 70 and 107—reproduction for broadcasting;

(c) s 47A—sound broadcasting by holders of a print disability radio licence;

(d) s 67—incidental broadcast of artistic works;

(e) s 109—broadcasting of sound recordings;

(f) s 135ZT—broadcasts for persons with an intellectual disability;

(g) s 199—reception of broadcasts;

(h) s 200—use of broadcasts for educational purposes; and

(i) pt VA—copying of broadcasts by educational institutions.

Question 16–1 How should such amendments be framed, generally, or in relation to specific broadcast exceptions? For example, should:

(a) the scope of the broadcast exceptions be extended only to the internet equivalent of television and radio programs?

(b) ‘on demand’ programs continue to be excluded from the scope of the broadcast exceptions, or only in the case of some exceptions?

(c) the scope of some broadcast exceptions be extended only to content made available by free-to-air broadcasters using the internet?

Proposal 16–2 If fair use is enacted, the broadcast exceptions in ss 45 and 67 of the Copyright Act should be repealed.

[74] See Ch 2.

[75] For example, in setting out the nature of copyright in broadcasts: Copyright Act 1968 (Cth) s 87.

[76] Ibid s 31(1)(a)(iv), (b)(iii).

[77] Ibid s 87(c).

[78] Ibid s 10.

[79] Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [9.415]

[80]Broadcasting Services Act 1992 (Cth) s 6, definition of ‘broadcasting service’, para (b).

[81] The ALRC uses the phrases ‘television program’ and ‘radio program’ in the absence of popularly understood, media-neutral alternative phrases.