In the latest case involving online technologies and copyright,
the Federal Court has held that radio programs simulcast over the
internet are "broadcasts", so broadcasters do not need to
pay extra royalties for using copyrighted music (Phonographic
Performance Company of Australia Ltd v Commercial Radio Australia
Limited  FCA 93).
The applicant, Phonographic Performance Company of Australia Ltd
(PPCA), represents the interests of copyright
owners of sound recordings. The Commercial Radio Australia
(CRA) members were granted a non-exclusive licence
to broadcast music, which they simulcast as part of radio programs
over FM radio and the internet.
The PPCA sought a declaration from the Court that the licence
did not allow the CRA members to simulcast the music over the
Internet, so the internet simulcast was a breach of copyright.
The licence granted the CRA members "the right, from time
to time, to Broadcast Sound Recordings in Australia".
The word "broadcast" was defined in the licence by
reference to sections 85(1)(c) and 10(1) of the Copyright Act 1968.
The definition of "broadcast" in the Act refers to
"broadcasting service". It was common ground that a
"broadcasting service" as defined by the Act clearly
covered the right to make available a sound recording in respect of
which copyright subsists via the internet. In dispute was the
meaning of a Ministerial Determination of the definition of
"broadcasting service" in the Act.
The Ministerial Determination set out that any service that
makes available television or radio programs using the internet
would be excluded from the definition of "broadcasting
service" with the following exception:
"[any] service that delivers television programs or radio
programs using the broadcast services bands."
PPCA argued that the relevant "service" in the
exclusion was the service of transmitting the music over the
internet by the CRA members. As internet transmission of the music
did not use "broadcast service bands", it was not covered
by the exclusion, so as a result the licence did not grant CRA
members the right to simulcast the music over the internet.
In response, CRA argued that the word "service" in the
exclusion referred to the whole service provided by the CRA
members. Consequently, as CRA members simulcast the music both over
FM radio (a broadcast service band) and the internet, the service
as a whole was a "broadcast service" for which CRA
members held the licence.
Justice Foster accepted CRA's interpretation of the word
"service" in the Ministerial Determination, noting
"The service which transmits the very same radio programs
at essentially the same time both to the FM transmitters and beyond
and to the web stream services and beyond is one service."
Consequently, Justice Foster found the simulcast of the music as
part of radio programs via the internet and FM radio was within the
definition of "broadcast" in the Act. As a result, the
CRA members were not in breach of the licence or the Act and no
extra royalties were payable to the PPCA for simulcasting the music
over the internet.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).