The Full Court of the Federal Court (the Full Court) delivered judgment in Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Ltd [2013] FCAFC 11.  The Court concluded that online simulcasts of radio programs (simultaneous broadcasting of radio programs online) are not “broadcasts”, which means that separate licences now need to be obtained for the broadcasting of sound recordings online.

Background

The question arose in the context of an agreement made between the appellant, Phonographic Performance Company of Australia (PPCA), and the respondent, Commercial Radio Australia (CRA) on 16 June 2000.  The PPCA and CRA entered into the agreement, under which the PPCA granted CRA member radio stations a license to broadcast sound recordings (the Industry Agreement).  Commencing in 2001, CRA member radio stations began simultaneously transmitting radio programs through broadcasting services bands and the Internet.  The content of the radio program available on the Internet was identical to the content of the programs using the traditional broadcasting services bans. 

The PPCA commenced proceedings in 2010 against the CRA, seeking a declaration that the performance of sound recordings over the Internet by CRA member radio stations was outside the scope of the licence granted under the Industry Agreement.  CRA contended in response that the licence covered the broadcast of the sound recordings, irrespective of the delivery platform. 

Justice Foster found for the CRA in the original proceedings, concluding that the recordings fell within the licence provided by the industry agreement.  His Honour dismissed the proceedings.  PPCA then appealed to the Full Court of the Federal Court.

The Appeal to the Full Court

On appeal, the primary issue was the definition of “broadcasting service” within section 6(1) of the Broadcasting Services Act 1992 (Cth).  The definition was considered within the context of the Industry Agreement between PPCA and CRA.  The Broadcasting Act provides that “broadcasting service” means a service that delivers radio programs to persons having equipment appropriate for receiving that service.

The definition is affected by a Ministerial Determination made on 12 September 2000 (the Determination).  The Determination excluded a service from the definition of “broadcasting service” if it made programs available by using the Internet. However, the determination then named a number of exclusions, including a service “that delivers radio programs using the broadcasting services bands.” The main question was whether the definition encompassed the streaming of online radio programs, and therefore was within the Industry Agreement, or, whether the definition excluded these online simulcasts, rendering CRA in breach of the licensing agreement. 

The PPCA contended that the communication was not delivered by a broadcasting service, and that the online streaming of the radio program was a distinct and separate broadcast that was in breach of the agreement. The CRA contended in response that the definition of “broadcasting service” related directly to the radio program itself, and was not affected by the medium through which the content was provided.

Findings of the Full Court

The Full Court unanimously upheld PPCA’s appeal and confirmed that the broadcast of radio programs online was a distinct service that was not within the scope of the licence granted under the industry agreement.  The Court agreed with PPCA, and overturned the decision of Justice Foster.

On the question of whether radio programs delivered online fell within the definition of broadcasting services, the Court held it did not, and was a separate service that was excluded by the definition in the Ministerial Determination.

In rejecting the CRA’s argument, the Full Court noted that the licence held was restricted to a fixed geographical area, whereas sound recordings over the Internet could be downloaded globally.  The Full Court concluded that to allow the provision of these services by the Internet, which was potentially outside the geographical area determined in the licence, would consitute a breach of the licensing agreement.

The Full Court distinguished between radio programs provided by traditional broadcast means, and radio programs delivered online, and concluded they were two separate “services” for the purposes of the Industry Agreement.  In relation to what constituted a service, the Full Court noted at [68]:

“[T]he word service signifies something other than the radio programs… service is the provision, by one means or another, such as the internet or terrestrial transmitters, of that radio program. The same radio program may be delivered by different services.”

Ultimately, the Full Court concluded the definition of “broadcasting services” did not extend to online streaming of radio programs.  The Full Court found that delivery by the Internet and broadcasting service bands constituted two separate services. 

Implications

The decision confirms that the definition of “broadcasting services” under the Broadcasting Services Act 1992 (Cth) does not include online content delivery platforms.  This has implications for broadcasters and content providers, as it requires they hold a separate licence for the online simulcast of radio programs.

This also provides a further revenue stream for copyright holders, with the result that distinct royalties may now be able to be claimed for songs played in an online broadcast of a radio program.  Thus, broadcasters of radio programs will now be required to obtain distinct licences for radio programs distributed both over the Internet and by traditional broadcasting bands. 

There is some suggestion that there remains uncertainty in relation to whether this restricts content delivered online within a closed network that is geographically restricted.  However, this question was not considered by the Full Court, nor was the scope and meaning of the word “broadcast” as used in the Copyright Act 1968 (Cth).