In its final report on Copyright and the Digital Economy, the Australian Law Reform Commission (ALRC) recommends that the Government consider whether the retransmission scheme for Free To Air Broadcasts and specific broadcast exceptions in the Copyright Act be repealed.
The ALRC made 2 primary recommendations in relation to broadcasts in its recent Copyright and Digital Economy report:
- Retransmission – the Government should consider whether the retransmission scheme for Free To Air Broadcasts be repealed (other than in relation to self-help providers). The ALRC commented that if the existing scheme is retained, the application of the carve out for retransmissions over the internet needs to be clarified.
- Broadcast exceptions – the Government should consider whether specific exceptions in the Copyright Act relating to broadcasts should be repealed.
The ALRC recommended these be considered in the context of broader communication policy.
Current position on retransmission
Retransmission is defined in the Copyright Act as the retransmission of a broadcast, where its content is unaltered and either simultaneous with the original transmission or delayed until no later than the equivalent local time.
The current retransmission scheme includes:
- Copyright in the broadcast – retransmission of a broadcast within the licence area or with the permission of Australian Communications and Media Authority (‘ACMA’) does not infringe copyright in the broadcast. No permission from or payment to the copyright owner of the broadcast is needed.
- Copyright in the underlying works/subject matter – there is a statutory licence scheme including equitable remuneration, for the underlying works/subject matter in a retransmission of a broadcast other than retransmission over the internet.
Considerations on retransmission
The ALRC considers:
- the removal of the scheme would promote copyright law that is technologically neutral and not favouring some retransmission platforms over others; and
- retransmission could be left to be determined by market mechanisms. This means that retransmission would be for negotiation between the various parties – broadcasters, retransmitters and underlying copyright owners.
The ALRC also proposed a second option for amending the current regime to include a remunerated exception for broadcast copyright – i.e. the broadcast copyright owner would receive payment. There was not much support for this.
The ALRC stated it did not consider it appropriate to make detailed recommendations given the broader issues of communications and media policy reform which go beyond copyright issues.
Submissions on retransmissions
A number of players commented that removal of the retransmission provisions would mean a range of licences would need to be negotiated. Copyright owners commented that they should be able to determine where and how copyright material is transmitted.
The existing carve out for Internet transmissions
The ALRC considered the carve out for internet in the existing statutory licence for retransmission of underlying works/subject matter was not consistent with media convergence. The retransmission regime should apply to any technology. There was discussion in the various submissions that geoblocking was needed to restrict internet or other transmissions to the relevant broadcast licensing area. This involves preventing users in certain locations from viewing specified material online. There is also a concern that extending the retransmission regime to the internet might adversely affect commercial interests and particularly deals for sport broadcast rights.
In addition to its recommendations regarding the retransmission scheme, the ALRC recommended the repeal of certain broadcast exceptions:
- Broadcast of extracts of works,
- Reproduction for broadcasting,
- Broadcasting of sound recordings,
- Incidental broadcast of artistic works, and
- Reception of broadcasts.
The ALRC considered that:
- uses falling under the current broadcast exceptions are likely to be covered by the proposed new fair use or consolidated fair dealing exception, or are amenable to voluntary licensing, and
- repealing certain broadcasting exceptions from the Act would advance technological neutrality, as transmissions made via the internet are not currently protected by the exceptions.
For example, the current exceptions permitting reproduction for broadcasting (also known as the ephemeral copying provisions) allow copies of works to be made to facilitate the broadcasting process. The ALRC recommended this exception, along with a number of others, be repealed because it would fall under the proposed fair use exception as an ‘incidental or technical use’.