Copyright owners will be able to claim a separate royalty for
their songs played in a radio program that is simulcast over the
internet, following a decision by the Full Federal Court
(Phonographic Performance Company of Australia Limited v Commercial
Radio Australia Limited  FCAFC 11).
An earlier decision had found that radio programs simulcast over
the internet fall under the definition of "broadcasts"
and therefore broadcasters do not need to pay extra royalties for
using copyrighted music.
The primary issue was whether a simulcast is a communication to
the public delivered by a broadcasting service within the meaning
of section 6(1) Broadcasting Services Act 1992 (as affected by a
Ministerial Direction) and thus within the terms of a broadcasting
Commercial Radio Australia contended that the broadcasting
service is the radio program itself; the means by which the program
is delivered is irrelevant.
In contrast, Phonographic Performance Company of Australia said
"service" refers to the radio program "wrapped up in
a delivery mechanism". Delivering a radio program using the
broadcasting services bands is one service; making it available
online is a second service.
The Court summarised that "the word service signifies
something other than the radio programs... [it] is the provision,
by other means or another, such as the internet or terrestrial
transmitters, of that radio program. The same radio program may be
delivered by different services... 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."
It then went further; a radio broadcasting licence is subject to
a condition that the licensee will not broadcast outside the
licence area which constitutes a specific geographical area within
Australia. As access to the internet can be gained from anywhere in
Australia, it would be a breach of the licence to broadcast on the
This is a significant decision, as it gives rights-holders
another revenue stream. For broadcasters, it means of course higher
operating costs. There is no word yet on whether the Commercial
Radio Australia will seek leave to appeal to the High Court.
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.
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