Retransmission of free-to-air broadcasts

210. The Copyright Act provides that the copyright in a work, sound recording or cinematograph film included in a free-to-air broadcast is not infringed by retransmission of the broadcast, if remuneration is paid under a statutory licensing scheme.^[253] The licensing scheme allows the retransmission of free-to-air broadcasts without the permission of the broadcaster, and for equitable remuneration to be paid to the rights holders of the underlying content in the broadcast.^[254]

211. Retransmission is defined as a retransmission of the broadcast, where the content of the broadcast is unaltered and either simultaneous with the original transmission or delayed until no later than the equivalent local time.^[255]

212. The Audio-visual Copyright Society Ltd (Screenrights) collects the licence fees, identifies the programs that are retransmitted and pays royalties to the rights holders. Royalties are generated when free-to-air broadcasts are simultaneously retransmitted by another service.

Current law

213. The retransmission provisions were inserted by the Copyright Amendment (Digital Agenda) Act 2000 (Cth) at the same time as the introduction of a new technology-neutral right of communication to the public.^[256] This replaced and extended an existing re-broadcasting right, which only applied to ‘wireless’ broadcasts and not, for example, to cable or online communication.^[257]

214. Retransmission without the permission of the original broadcaster does not infringe copyright in broadcasts, by virtue of provisions contained in the Broadcasting Services Act 1992 (Cth). The Broadcasting Services Act states that no ‘action, suit or proceeding lies against a person’ in respect of the retransmission by the person of certain television and radio programs^[258]—providing immunity against any action for infringement of copyright that might otherwise be able to be brought by the original broadcaster.

215. In 1999, amendments to the Broadcasting Services Act^[259]changed the operation of the immunity so that it no longer applied to underlying rights holders.^[260] In 2000, amendments to the Copyright Act introduced a statutory licensing scheme applying to retransmission of copyright works, sound recordings or cinematograph films (pt VC).^[261]

216. Section 135ZZJA of the Copyright Act provides that the retransmission regime ‘does not apply in relation to a retransmission of a free-to-air broadcast if the retransmission takes place over the Internet’.

217. Consequently, on one view, Australian law makes retransmission of television broadcasts over the internet ‘legally impossible’.^[262] However, the application of s 135ZZJA to internet protocol television (IPTV) is not clear. In particular, whether retransmission by an IPTV service ‘takes place over the Internet’ may depend on the functional characteristics of the service.^[263]

Options for reform

218. The immunity provided by the Broadcasting Services Act was introduced as part of a retransmission regime intended to provide for the distribution of free-to-air broadcast signals to areas which do not receive adequate reception of services.^[264]

219. With the introduction of pay TV into Australia in 1995, cable pay TV operators (such as Foxtel) began retransmitting national and commercial television services as ‘free additions’ to their pay TV channels.^[265] While underlying rights holders are remunerated, free-to-air broadcasters are not.

220. Concern has been expressed that, while the retransmission regime was ‘designed to facilitate self-help sites to address reception and coverage issues in regional areas—it was not intended to facilitate free and unlimited retransmission for the benefit of third party businesses’.^[266]

221. In a submission to the Convergence Review, Free TV Australia called for the retransmission regime to be updated to strengthen broadcasters’ rights. In particular, it was suggested that a US-style ‘must-carry’ regime should be implemented. Under such a regime, free-to-air broadcasters have the option of either requiring that free-to-air services are carried on a cable provider’s system, or requiring that the free-to-air broadcaster is remunerated where the cable provider chooses to retransmit the signal.^[267]

222. In contrast, Screenrights submitted that a ‘must-carry’ regime for retransmission would be ‘potentially anti-competitive and unfair and should not be introduced in Australia’. Rather, the current system of retransmission ‘maximises diversity and competition in Australian media while ensuring fairness’.^[268]

223. Screenrights also suggested that the Copyright Act should be amended to extend the statutory licence scheme to retransmission on the internet and to require (as a condition of the licence) that ‘a retransmitter must apply effective access control technological protection measures to ensure the retransmission is appropriately geoblocked’.^[269]

Discussion

224. The Terms of Reference specifically request the ALRC take into account the recommendations of the Australian Government’s Convergence Review.^[270] In particular, the Convergence Review suggested, in light of its recommendation that licences no longer be required to provide any content service,^[271] that the retransmission provisions be reviewed as part of the ALRC Inquiry.^[272]

225. The retransmission provisions of the Broadcasting Services Act operate as an exception to copyright in materials included in television and sound broadcasts. The ALRC is interested in comment on whether this exception remains appropriate, given technological and regulatory change.

226. The reason for excluding internet retransmission from the scheme appears to have been to avoid retransmitted content intended for Australian audiences being disseminated globally without the authorisation of the copyright holders.^[273] Reform to extend the statutory licensing scheme to retransmission over the internet would involve a number of complexities, including the need to negotiate amendments to the Australia–United States Free Trade Agreement.^[274]

227. At the least, however, it may be desirable to clarify the application of the s 135ZZJA exclusion to retransmission over the internet. For example, it has been suggested that an IPTV retransmission may fall within the operation of the statutory licensing scheme because ‘while the retransmission occurs over infrastructure shared by an Internet connection, as a direct feed from ISP to customer at no point is connection to the Internet by either ISP or customer necessitated’.^[275]

228. These issues—whether the retransmission of free-to-air broadcasts should continue to operate as an exception to copyright in broadcasts; and whether the statutory licensing scheme should apply in relation to copyright materials retransmitted over the internet—raise significant communications and competition policy questions.^[276]

229. The ALRC is interested in comment on whether this Inquiry is the best forum for considering these questions, or whether these questions are more a matter for the Australian Government to consider within the context of communications policy.

230. The ALRC is also interested in any other implications for copyright reform arising from recommendations of the Convergence Review—for example, from its recommendations that ‘the policy framework for communications in the converged environment should take a technology-neutral approach that can adapt to new services, platforms and technologies’,^[277] and for investigation of content-related competition issues.^[278]