We do not believe they should charge broadcasters twice: ABC | radioinfo

We do not believe they should charge broadcasters twice: ABC

Thursday 06 February, 2014

There has been a lot of discussion on the PPCA streaming dispute, but the ABC has been quiet on the subject… until now.
 
radioinfo asked ABC Radio’s Head of Industry Policy & Strategy Jane Connors about the national broadcaster’s position on the current dispute.
 
While not involved in the current proceedings before the Copyright Tribunal, the ABC is “nonetheless watching the case carefully.”
 
The Corporation began simulcasting radio services in 1999 and, along with other sectors of the radio industry, “regards simulcasting as an alternative means of live delivery of its radio services to audiences for their convenience.”
 
Connors has told radioinfo:

“While the ABC respects the rights of copyright owners, we do not believe that they should be able to charge broadcasters twice for the simultaneous use of the same copyright material available through a range of devices. No single listener can listen to two devices simultaneously; they are either listening to a radio or listening online.
 
“If an exact online simulcast of a free to air broadcast were to be considered separately from that broadcast, the ABC has a range of concerns around copyright clearance and protection, the impact of multiple regulatory regimes, the principles of net neutrality, and an inevitable, significant increase in the cost of music rights.
 
“The ABC would need to consider carefully its ability to deliver its services in a manner consistent with the expectations of the Australian public.”

 
Jane Connors would to be drawn on what consequences might come from “ carefully considering [the ABC’s] ability to deliver its services,” but, if the PPCA acton is upheld by the government, there are logically only two options, pay the increased fees, or stop streaming.
 
Ironically, if the government does uphold the PPCA’s demand for double payment, the ABC will end up using more government funded dollars to pay those extra costs.
 
Last year, the ABC joined with Commercial Radio Australia, the SBS and the Community Broadcasters’ Association in a joint industry submission to a Senate Enquiry into the issue of simulcast streaming rights payments. Connors says the national broadcaster’s position has not changed since that submission.
 
Looking back at the history of simulcasting on the internet, the first official mention of it was in 1996, when the then Australian Broadcasting Authority declared it to be a broadcasting service. Simulcasting (that is, the simultaneous online communication of a broadcast radio program) has been prevalent in Australia since 1999.
 
Until the recent decision of the Federal Court, it was accepted by many participants in the broadcasting industry that a simulcast of a radio program was a ‘broadcast’ within the meaning of that term in the Copyright Act 1968 and the Broadcasting Services Act. The most recent decision changed that definition.
 
With the record industry struggling to come to grips with new business models, and other non-radio streaming and downloading music services creating new licencing precedents, the PPCA turned its attention to the radio industry in 2009 and attacked the definition of ‘broadcasting’ in its bid to increase fees, which were previously capped. That action led to the current dispute.
 
The joint ABC/SBS, Commercial and Community radio submission to the Senate Enquiry outlined the possible consequences of reclassifying the concept of broadcasting, saying -

 
If the New Interpretation continues and the online component of a simulcast is not treated as a broadcast, the following consequences will flow:
 
(i) It effectively removes broadcast copyright protection for broadcasts which are simulcast online.
 
(ii) It may make it more difficult for Broadcasters to obtain copyright clearances for underlying rights, resulting in fewer broadcasts being simulcast online.
 
(iii) It will be open to copyright owners to claim payment in respect of each separate form of transmission – in effect a double payment for the same program transmitted at the same time via two different technological platforms.
 
(iv) It may result in some, if not all, broadcasters ceasing to simulcast, thereby
depriving some members of the public of access to programs on the devices of
their choice and, sometimes, at all.
 
(v) There may be different regulatory regimes for exactly the same program which is simultaneously transmitted by a broadcaster using two different forms of technological platforms.
 
(vi) It will create a regulatory regime which is not technologically neutral and give rise to difficulties in drafting future legislation.
 
(vii) It changes the status quo as understood and applied by broadcasters over a long period, without dispute by PPCA.
 
(viii) It may breach Australia's obligations under the Rome Convention.
 
(f) The public interest and public benefit in maintaining the status quo prior to the New Interpretation is significant, benefiting the vast majority of the Australian public who listen to ABC/commercial/community/SBS radio or watch ABC/SBS television.

 
The PPCA's submission to that Enquiry asserted:

The simulcasting of music over the internet is another way in which our artists and record labels can have their music licensed. Both in Australia and in other territories, the simulcasting or communication of sound recordings is distinct from the broadcasting of sound recordings – and consequently should be valued and remunerated separately. However, inequities in the Copyright Act 1968 (Cth) and certain commercial practices are detrimentally affecting the ability of creators and copyright owners of recorded music to be remunerated appropriately for their creative efforts and endeavours.

As the Committee will see ... it is imperative that we continue to promote and preserve the rights of Australian artists and content creators, so that they are fully rewarded for their creative work. This will ensure the continued development of a thriving creative community that sustains and creates jobs and enables Australian creators to be rewarded for their creative output.

The dispute continues, and meanwhile regional radio stations are no longer streaming... sort of.

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