Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited  FCA 93
The Federal Court of Australia has recently determined that a simulcast is a "broadcast" within the meaning of the term in the Copyright Act, and as such, falls within the scope of non-exclusive broadcasting licences issued to Australian commercial radio stations by the Phonographic Performance Company of Australia ("PPCA"). The decision clarifies the meaning of "broadcast" under the Copyright Act, and provides useful guidance as to the approach Australian Courts take to the interpretation of intellectual property agreements, legislation and ministerial determinations.
The licensing and broadcasting of popular music in Australia The PPCA
The PPCA is a collecting society that represents record companies and music publishers as the owners of copyright subsisting in commercially released sound recordings by issuing licences, and collecting and distributing royalties on account of the public performance or communication of such recordings and music videos in Australia. On 16 June 2000, PPCA agreed to grant the members of Commercial Radio Australia ("CRA") (commercial radio stations such as Nova FM) non-exclusive licences to broadcast sound recordings under its management. Since 2001, Australian radio stations have increasingly simulcast their radio shows using the Internet and traditional AM/FM transmission platforms. PPCA considered that the Internet steaming component of the simulcast fell outside the licences it had granted to CRA members, and accordingly, in 2010 filed an application with the Federal Court:
- seeking a declaration that the simulcasting of radio programmes via the Internet or web streaming by CRA members did not involve a "broadcast" as the term is defined in the Copyright Act (and adopted in the agreement between PPCA and CRA); and
- as such fell outside the scope of licences granted to CRA members.
A matter of contractual and statutory interpretation
To resolve PPCA's application, Justice Foster sought to delimit the scope of the "Broadcasting Right" licensed to CRA members with close reference to definition of the term found in the agreement between PPCA and CRA. As illustrated in the diagram below, this exercise involved the tracing of definitions from the agreement to their origins in the Copyright Act and Broadcasting Act.
Term: "Broadcasting Right"
Source: PPCA and CRA Agreement
Definition: "…the right, from time to time, to Broadcast Sound Recordings in Australia
Source: PPCA and CRA Agreement
Definition: "…the act described in s 85 (1) (c) of the Copyright Act as defined in s 10 (1) of the Act from time to time
Source: s. 10 (1) of the Copyright Act as at the date of the Application
Definition: "…a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act
Term: "Broadcasting Service"
Source: Broadcasting Act
Definition: "a service that delivers…radio programs…whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means but does not include…a service…that the Minister determines not to fall within this definition"
Term: not a "Broadcasting Service"
Source: Ministerial Determination
Definition: a service that makes available…radio programs using the Internet, other than a service that delivers television programs or radio programs using the broadcasting services bands.
Source: Justice Rares
Definition: The term service is not concerned with "broadcasting platforms" (i.e. AM/FM transmission, digital transmission or web streaming), but rather to the "service" in the sense of the entire business providing the platforms (i.e. the radio stations)
Following this analysis, Justice Rares concluded that:
- the service which transmits the very same radio programs at essentially the same time via both AM/FM transmission and web streaming is "the one service";
- as this service utilised the broadcasting services bands, it was not excluded by the ministerial determination, and was therefore a broadcasting service within the meaning of the Broadcasting Act;
- as a simulcast was a "broadcasting service", it was a "broadcast" for the purposes of the Copyright Act and the PPCA and CRA agreement; and
- as a "broadcast", simulcasting fell within the scope of the "Broadcasting Right" licensed by the PPCA to the CRA members.
As a result, under the current PPCA and CRA agreement, Australian radio stations are entitled to simulcast their programmes via the Internet.