A break in transmission for online radio streaming

After last year failing to convince the High Court to increase the licence fees paid by commercial radio broadcasters, the Phonographic Performance Company of Australia Ltd (PPCA) has reversed its fortunes with a Full Federal Court victory in relation to online streaming of radio broadcasts.

In hearing an appeal by the PPCA from an earlier decision of Justice Foster in proceedings against Commercial Radio Australia Ltd (CRA), the industry body for commercial radio stations, the Full Court was required to consider how issues of convergence and technological neutrality apply when a radio station makes its programs available simultaneously on the radio and via the internet.

In a judgment handed down on Wednesday 13 February, the Full Court concluded that when a radio station provides an online simulcast of its standard AM, FM or digital broadcast, it is not providing a “broadcast” as defined in the Copyright Act 1968 (Cth).  Instead, it is providing a separate communication to the public.

This means that online simulcasts of radio programs fall outside the scope of copyright licences granted to commercial radio stations by the PPCA, a copyright collecting society.  The decision paves the way for the PPCA to seek additional royalties from radio stations to cover the streaming of their programs on the internet.

Ultimately, the case turned on the meaning of the term “broadcasting service” in the Broadcasting Services Act 1992 (Cth), which flows through to the Copyright Act.   Specifically, the definition incorporates a Ministerial Determination made in 2000 by the then-Minister for Communications, IT and the Arts, Richard Alston, which excluded from being defined as a “broadcasting service”:

 A service that makes available television programs or radio programs using the internet, other than a service that delivers television programs or radio programs using the broadcasting services bands.

Before grappling with the double negative in the Ministerial Determination, the Full Court decided that in this context “service” means the provision or delivery, in a particular manner, of a particular radio program.

Therefore, when a broadcaster such as DMG Radio transmitted its Nova FM radio station both from a standard radio transmitter and via the internet it was providing two services.  The first is a traditional radio broadcast, but the second is not a broadcast because of the exclusion in the Ministerial Determination.

The Full Court’s decision will no doubt add fuel to the fire of those calling for Australian copyright law to become more technology neutral.  We can expect to see this issue addressed in some detail in the Australian Law Reform Commission’s discussion paper for the Copyright and Digital Economy inquiry, due to be released later this year.