Government will not consider further action on copyright dispute for now | radioinfo

Government will not consider further action on copyright dispute for now

Wednesday 05 March, 2014
Steve Owens complained to the minister

Steve Owens lives in Newcastle and works 100 metres from the KO and NX FM studios in Charlestown. But he can’t get good reception, so he listens online. At least he did until Australia’s commercial stations stopped streaming.
 
So he wrote to the Minister about it, and received what he calls a “bull s**t political reply,” which he has shared with radioinfo.
 
The 68 year old former radio announcer now works as a Real Estate Valuer, out of his home office and listens to the radio while he works.
 
Writing to the Minister he said:

"Up until about a month ago I used to listen to them in my apartment on the internet as there is so much steel & electrical wiring in modern apartments that it causes static on hard line radio reception. I asked the management of the stations why suddenly I could no longer receive them on the internet. They informed me that I was not the only person with this problem and they had been receiving an unprecedented number of complaints with the same problem.
 
"They explained there was a dispute between commercial radio stations and PPCA (overseas record companies)…
 
"Surely if the Government is spending Billions on a fast internet throughout the country, they can pull PPCA into line and explain to them that their music is already being paid for and played (and thereby promoted to the public) and so all Australians can benefit… I would think the internet is simply another distribution mechanism for live and local free to air content."

 
This week he received this reply from Malcolm Turnbull, which explained the Minister's view of how the dispute is evolving and said the government "will not take any further action" until negotiations have run their course. He said his view is that stepping in would not be an "easy fix" for the dispute.

Dear Mr Owens,
 
Thank you for writing to me concerning internet simulcasts of radio services.
 
The Government appreciates the vital role of local radio broadcasters in our community and the importance of the issue of internet simulcasts to the broadcasting sector.
 
This issue concerns an ongoing copyright dispute between Commercial Radio Australia (CRA) and the Phonographic Performance Company of Association (PPCA) over royalties for internet radio simulcasts. Specifically, the dispute considers whether existing licence arrangements between the parties cover royalty payments for the use of recorded music in internet radio simulcasts.
 
This has been the subject of a decision by the Federal Court of Australia and an inquiry by the Senate Standing Committee on Environment and Communications. The Committee Inquiry report, which was released on 12 July 2013, recommended that the Government seek to ‘resolve the ambiguity’ around the regulation of internet radio simulcasts either by encouraging the parties to negotiate a satisfactory commercial agreement, or by implementing a new determination based on a full assessment of the consequences of such action. While CRA won the case in 2012, on appeal the unanimous judgement of the full bench of the Federal Court in 2013 was in favour of the PPCA.
 
Following that finding CRA, on behalf of its members, has requested the Minister introduce a specific determination that would have the effect of changing the definition of ‘broadcasts’ to include internet radio broadcasts that are provided simultaneously by commercial radio licence holders, national and community broadcasters.
 
The creation of a legislative instrument to resolve a commercial dispute between two parties would result in the Government effectively creating an unfair regulatory environment that serves to favour the business model of traditional radio broadcasters over internet content providers and lead to a competitive disadvantage between the two mediums. 
 
While CRA and its members argue that the creation of a new legislative instrument would be an ‘easy fix’, this approach ignores significant issues. As well as the unequal treatment of traditional radio and online services, issuing a new determination of the model requested by the CRA would also result in the unfair and inconsistent treatment between other broadcasting services such as television. It may also potentially breach Australia’s international trade obligations.
 
The CRA’s proposal also raises wider concerns with respect to established copyright laws, and has potentially adverse implications for existing and future commercial rights agreements. Stakeholders raised these and other concerns through the Committee inquiry process, and their position was that a new legislative instrument, of the sort proposed by the CRA, should not be made at this time.
 
I have met with both the PPCA and the CRA and have strongly encouraged CRA and the PPCA to enter into good faith commercial negotiations to resolve their dispute. If the dispute cannot be resolved, the correct forum to deal with these commercial disputes is the Copyright Tribunal of Australia.
 
On 16 December 2013, the Tribunal determined an Interim Licence Scheme that sets out the terms on which the PPCA is willing to grant interim licences to commercial radio broadcasters to use music as part of their internet simulcast services. The Scheme, which is to have effect from 1 October 2013, establishes nominal fees for such use. The Interim Licence Scheme will operate until a final decision of the Tribunal on the matter, a further order of the Tribunal, or any future commercial agreement between the parties.
 
The nominal fees for such use are:
·       $312.50 (flat fee) per quarter for regional stations with licence areas that cover less than 2 per cent of the Australian population.
·       $625 (min) to $3,125 (max) per quarter for metropolitan stations, and regional stations with licence area population of in excess of 2 per cent of the Australian population, with the fee range dependent on the amount of music used as part of the service. 
 
I believe the interim scheme is a good result and positive step in the process. I am also pleased that all parties arrived at a consensual agreement and have sought to resolve this dispute at the appropriate forum, the Copyright Tribunal.
 
The Government is aware that Commercial Radio Australia has some concerns with some elements of the interim scheme and is discussing these concerns with the PPCA.
 
A key principle of the Government’s deregulation agenda is that regulation should only be imposed where absolutely necessary and should not be the default position when dealing with public policy issues. The Government understands the need to work towards technology neutral regulation; however it should not be done at the expense of one industry over the other.
 
As has been the case since the election, the Government will continue to monitor this issue closely. However, the Government will not consider any further action until the negotiation and arbitration process has run its course.
 
Ultimately, the decision whether or not to provide internet streaming of radio services is a matter for each broadcaster. Commercial radio broadcasting licensees are regulated under the Broadcasting Services Act 1992. This Act does not prevent or preclude broadcasters from offering radio or other services online.
 
I understand your concerns and am committed to working to positively reform broadcasting and copyright law to reflect the rapid changes occurring in the media and communications industry in Australia. As you know, we will be examining these and other issues through our whole-of-government deregulation process.
 
I trust this information assists in updating you on this important matter.
 
Yours sincerely
Malcolm Turnbull

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