Assumptions and options for reform

15.29 Options for reform are, however, largely dependent on assumptions about matters not within the scope of the ALRC’s Inquiry.

15.30 First, reform of the retransmission scheme raises threshold questions about what exclusive rights should be covered by broadcast copyright. That is, what copyright or other protection should be extended to broadcasts in the first place?

15.31 As discussed above, in Australia, broadcasters are provided with broader protection than required internationally, as the Rome Convention does not require copyright protection, as such, for broadcasts.

15.32 The Rome Convention provides permitted exceptions to broadcast protection, which include: private use; the use of short excerpts in connection with the reporting of current events; ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts; and use solely for the purposes of teaching or scientific research.^[34] Signatories may also provide for the same kinds of limitations with regard to the protection of broadcasting organisations as domestic law provides ‘in connection with the protection of copyright in literary and artistic works’.^[35]

15.33 From this perspective, options for reform can be seen as relatively unconstrained, in copyright policy terms, because the Rome Convention does not require broadcast copyright, and allows a series of exceptions not found in the Berne Convention.^[36] Arguably, the nature of broadcast rights can justify anomalous exceptions—that is, exceptions that do not apply to other subject matter.

15.34 On the other hand, having extended copyright to broadcasts, there are arguments that the exclusive rights applying to broadcasts should be similar to those applying to other subject matter. Arguably, the free-use exception for retransmission would not comply with the ‘three-step test’ under the Berne Convention and other international copyright conventions,^[37] if this test applied to broadcast, because it removes broadcast copyright protection without permission or remuneration, conflicting with normal exploitation of the work and unreasonably prejudicing the legitimate interests of the broadcaster.

15.35 The scope of broadcast copyright has long been tied up with debates regarding communications policy, including:

the facilitation of the subscription television industry, ensuring access to broadcasts in remote areas, and the introduction of digital and high-definition technologies. The desire to promote these goals of broadcast policy has led to broadcasters being denied certain rights they might, as copyright owners, expect to have.^[38]

15.36 Copyright law has longstanding links with communications regulation, which has tended to emphasise the ‘special’ place of broadcasting in the media landscape. The Copyright Act contains, for example, many free-use and remunerated exceptions that take the circumstances of the broadcasting industry into account, including the statutory licensing scheme for radio broadcast of sound recordings and other exceptions discussed in Chapter 16.

15.37 Historically, regulators have pursued a range of public policy goals in relation to broadcasting, such as ensuring universal public access, minimum content standards (including classification and local content rules), diversity of ownership, competition and technological innovation.^[39]

15.38 The retransmission scheme, in facilitating access to free-to-air broadcasts across media platforms, was intended to serve at least some of these public policy goals. The extent to which retransmission remains important may, however, be questioned in light of the convergence of media content and communications technologies. For example, if television audiences fragment across a multiplicity of broadcast, cable and online programming, or there is a move away from licensing media content providers, the case for a retransmission scheme that qualifies ordinary copyright principles may be weaker.

15.39 The retransmission scheme can be seen as favouring certain commercial interests in the communications and media markets. At present, subscription television providers do not need to license broadcast copyright when retransmitting free-to-air broadcasts, which advantages them by removing the need to negotiate rights with broadcasters. Similarly, cable and satellite subscription television providers have an advantage over internet content providers in being able to access the pt VC statutory licensing scheme for the underlying rights.

15.40 Whether the existing retransmission scheme produces good outcomes in terms of communications and competition policy is a matter beyond the scope of the ALRC’s Inquiry. Further, many aspects of communications and media regulation are under review, including as a response to the Convergence Review^[40] and against the backdrop of the rollout of the National Broadband Network (NBN). In this context, the ALRC presents two options for reform. These options are based on two different sets of assumptions about the desirable scope of broadcast protection and the importance of retransmission.