Use of ‘broadcast’ in copyright exceptions

16.15 A range of exceptions in the Copyright Act use the terms ‘broadcast’, ‘broadcasting’ or ‘broadcaster’. These exceptions include those concerning time shifting and retransmission of free-to-air broadcasts, which are discussed separately elsewhere.^[11] Other exceptions that refer to the concept of a broadcast include those providing for free-use exceptions^[12] and for remunerated use, subject to statutory licensing.^[13]

16.16 Distinctions currently made in copyright law between broadcast and other platforms may be increasingly difficult to understand in a changing media environment. Similar content includes, increasingly, television content made available on the internet and internet radio.

16.17 The Australian Communications and Media Authority (ACMA) advised that an online research survey, conducted in 2011, showed that almost four in 10 respondents watched television or video content both offline and online (38%); less than a third watched this material solely offline (31%); and some were solely online viewers (12%).^[14]

16.18 A recent ACMA report highlights growth in the availability of commercially-developed video content over the internet. This includes: catch-up television offered by free-to-air broadcasters on an ‘over the top’ basis, enabling viewers to access recently aired shows via the internet; high-end internet protocol television (IPTV) services providing users with access to video content in return for a subscription, or fee-per-view provided by internet service providers; and ‘over the top’ content services offered direct from the content provider to the consumer.^[15]

16.19 The ACMA notes that ‘the supply of IPTV services has continued to expand over the 2011–12 period, encouraged by increased competition between ISPs and higher available bandwidth’. The ways in which consumers can access video content, including IPTV services, are expanding and the rollout of the National Broadband Network is likely to provide significant additional stimulus to the supply and take up of online content.^[16]

16.20 Stakeholders identified the existing definition of broadcast, for copyright law purposes, as increasingly problematic in this environment.^[17] The Australian Broadcasting Corporation (ABC) noted that, due to technological change, statutory licences under ss 47, 70, 107 and 109 of the Copyright Act provide only part of the rights necessary for the ABC to deliver content. The ABC stated that when content is broadcast relying on one of these statutory licences, it is ‘administratively burdensome, complex and costly’ to then have to seek licences when the content moves online, for example, for catch-up television. This, the ABC said, ‘renders the statutory licence ineffective in the digital economy’.^[18] The ABC suggested that these provisions ‘need to be rephrased in a technology-neutral way in order to support broadcasters as technologies converge’.^[19]