Could this be the end of online simulcasting?

Jul 2013 |

The recent Full Court of the Federal Court decision in Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited [2013] FCAFC 11 will have a significant affect on the way in which radio broadcasters operate in Australia. The finding that radio programs simulcast over the internet are not 'broadcasts' within the meaning of s10 of the Copyright Act 1968 (Cth) (the Copyright Act), means that radio broadcasters will now be required to obtain an additional licence if they wish to continue simulcasting online.

Background

The Phonographic Performance Company of Australia (PPCA) is a representative of copyright holders of sound recordings, and grants members of Commercial Radio Australia (CRA) licences under which they are permitted to broadcast sound recordings in Australia.

With the rise of the internet it has become common for CRA members to simultaneously simulcast their radio programs online. Simulcasting is where identical continuous audio streams are sent out to two or more sources simultaneously. An example of simulcasting discussed in the judgment was where a commercial radio station broadcasted a radio program by FM transmission, and at the same time sent a signal to a web stream server which enabled listeners to stream the program online. 

PPCA argued that where CRA members communicated sound recordings to the public by means of the internet they were acting outside the scope of broadcasting licences, which permit the broadcasting of recordings over radio frequency only.

The appeal

In considering whether the PPCA licences allowed CRA members to make their radio programs available via the internet, the Full Court focused on the interpretation of the word 'broadcast' which was used in the membership agreements. Both parties agreed that 'broadcast' should be understood as having the same meaning provided in the Copyright Act. Their Honours considered the following sections to ascertain the meaning:

  • Section 10(1) of the Copyright Act provides that 'broadcast' means a communication to the public delivered by a 'broadcasting service' within the meaning of the Broadcasting Act 1992 (Cth) (the Broadcasting Act). 
  • Section 6(1) of the Broadcasting Act then provides that 'broadcasting service' means a service that delivers radio programs to persons having equipment appropriate for receiving that service, but does not include, relevantly, a service that the minister determines not to fall within the definition.
  • The relevant ministerial determination provides that broadcasting does not include a service that makes available radio programs using the internet, other than a service that delivers radio programs using the broadcasting services bands.

CRA submitted that the broadcasts in question were not delivered by a 'service' that uses the internet, but were delivered by a service that uses radiofrequency spectrum, cable, optical fibre or other means and consequently falls outside the ambit of the ministerial determination.  Alternatively it was submitted that even if the radio programs were made available using the internet, the particular radio channel is still a service that delivers programs using the radio services band and so again falls outside the ministerial determination. CRA's primary contention was that the 'broadcasting service' was the radio programs themselves and the means by which they are delivered is irrelevant.

PPCA submitted that the ministerial determination is concerned with the method or platform used in delivering radio programs. Consequently a 'service' delivering radio programs using the broadcasting services bands can be distinguished from a service delivering programs using the internet. Those services using the internet cannot be a 'broadcasting service' as they fall squarely within the exclusion in the ministerial determination.

The Full Court agreed, finding that a "broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate or inform. Thus the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet."

Consequently, a service that provides radio programs via the internet does not come within the definition of 'broadcasting service' provided in the Broadcasting Act. This in turn means that those services fall outside the provisions of the PPCA licensing agreements.

The Full Court also touched on a practical complication that would arise if a finding was made in favour of CRA. Broadcasting licences are subject to geographical restrictions on where the broadcasting service is to be delivered. For example, one licence may prohibit broadcasting outside the South East Queensland region. To find that a broadcasting service is a service making programs available via the internet, which could be accessed from any location, would inevitably result in a breach of the licence agreement.

What will this mean?

The obvious consequence from this determination is that CRA members who simulcast radio programs using the internet will potentially be in breach of copyright, as they are acting outside the scope of the licence granted by PPCA. Short of abandoning online live streaming, which may be problematic given current consumer interest, the flow on effect is likely to be increased operating costs for CRA members obtaining separate licencing to continue simulcasts and potential litigation and damages should the breaches continue.

This is to be weighed against the competing benefit for copyright holders, who are now able to access an additional income stream from the sale of webcasting licences, a distinct licence offered by the PPCA. 

It remains to be seen whether the CRA will seek to negotiate a new industry agreement for its members, to bundle both broadcasting and webcasting licence together in a single package.