A technology neutral, broad based right to authorise transmissions to the public should be introduced into the Copyright Act1968. (Paragraph 1.3)
The new transmission right should:
* cover the transmission of copyright material in intangible form to the public by any means or combination of means which is capable of being made perceivable or used by a receiving device;
* encompass the existing right to broadcast and replace and extend the right to transmit to subscribers to a diffusion service;
* remain separate from the existing public performance right;
* be given to all copyright owners, including owners of copyright in sound
recordings and broadcasts.
The right to broadcast should be retained in the Copyright Act 1968
as part of the new transmission right. The definition of broadcast for
this purpose should include all transmissions made by providers of broadcasting
services under the Broadcasting Services Act 1992, or as part of a
national broadcasting service of the ABC or SBS, but exclude other transmissions
to the public such as on-demand services, interactive services and computer
networking of material. The definition of broadcasting should be linked to the
definition of broadcast services in the Broadcasting Services Act and should be
a specifically defined use of copyright material which falls within the scope of
the right to transmit to the public. (Paragraph 1.3.2)
A definition of "the public" should not be introduced into the Copyright Act 1968 and that term should remain subject to judicial interpretation. (Paragraph 1.3.3)
However, a new provision should be inserted in the Act to the effect
that transmissions of copyright material by electronic or similar means which
are made for a commercial purpose should be deemed to be transmissions to the
public. (Paragraph 1.3.3)
In view of Recommendation 1 to introduce a right of transmission to the
public, references to transmission to subscribers to a diffusion service should
be deleted from the Copyright Act1968. In particular, section 26
should be repealed. (Paragraph 1.3.4)
(i) Reference to specific broadcasters and legislation in section 91 should be removed from the Copyright Act1968. The section should be amended to provide that copyright subsists in all broadcasts which are lawfully made from a place in Australia, and which are capable of being lawfully received by members of the public. (Paragraph 2.3)
(ii) Section 99 of the Copyright Actshould be amended to remove the reference to specific broadcasters and statutes and to provide that the owner of copyright in the broadcast is the person who makes the broadcast. Section 22(5) of the Act, which deals with who is the maker of the broadcast should be amended to provide that the maker of a broadcast is the person who is responsible for the content of the broadcast and also makes the arrangements necessary for its transmission. (Paragraph 2.3)
(iii) Copyright protection should not be extended to transmissions other than
broadcasts in the extended sense proposed in Recommendation 2. (Paragraph
2.3)
(i) Where a transmission originates from Australia and is intended for reception by the public outside Australia, the maker of the transmission should be required to obtain the licence of the copyright owner in Australia to do so. (Paragraph 3.3)
(ii) Broadcasts intended for reception by the public outside Australia but
originating in Australia should be the subject of copyright protection in
Australia. (Paragraph 3.3)
(i) The CCG accepts the principle that where a transmission originates outside Australia but is intended for reception by the public in Australia the maker of the transmission should be required to obtain the licence of the owner of copyright in Australia. Given the international complexities of the issue, the CCG considers that the appropriate means of implementing such a right requires further examination. (Paragraph 3.3)
(ii) The CCG recommends that broadcasts originating from countries outside
Australia and which are intended for reception in Australia, should be the
subject of copyright protection in Australia. (Paragraph 3.3)
(i) The maker of a satellite broadcast (and therefore the owner of any copyright in the broadcast) should be the person responsible for the content of the service, as is the case for other broadcasts. Section 22(5) of the Copyright Act1968 specifies who is the maker of a broadcast. The section should be amended as set out in Recommendations 5(ii) above, and reference to the maker of a satellite broadcast should be removed from section 22(6). (Paragraph 3.5)
(ii) Section 22(6) of the Act should be reworded to provide that the place
from which a satellite broadcast is made is the place from which the signals
carrying the broadcast are transmitted to the satellite. (Paragraph
3.5)
A new section should be inserted in the Copyright Act 1968 which
provides that transmissions originating from a satellite which are directly and
lawfully receivable by the public in Australia and intended for reception by
that public should be deemed to be made from Australia and therefore protected
as broadcasts in which copyright subsists. (Paragraph 3.7)
Section 199(4) of the Copyright Act 1968 should be replaced with a section which allows for retransmission by any means of a broadcast (in the extended sense suggested in Recommendation 2) only in the following circumstances:
(i) where the retransmission takes place within the intended reception area of the primary broadcast; and
(ii) where the retransmission is simultaneous with the primary broadcast; and
(iii) where the content of the primary broadcast is not altered in any way in the retransmission; and
(iv) the retransmission is for the purpose of enabling reception of the primary broadcast in areas where the signal quality of that broadcast is inadequate.
Consequent amendments will be required to section 199(5), (6) and (7) of the
Act. (Paragraph 4.2) The CCG has also recommended complementary amendments to
section 212 of the Broadcasting Services Act 1992. (See
Recommendation 16).
Retransmissions of broadcasts should be dealt with in a technology neutral
manner. All retransmissions should be dealt with in a single section as set out
in Recommendation 10 and section 25(3) of the Copyright Act 1968
should be repealed.
Two new offences concerning unauthorised reception of transmissions should be enacted:
* fraudulent reception of transmissions.
* making, importing, selling, or letting for hire unauthorised decoding devices.
The CCG notes that these offences may possibly be more appropriately included in Commonwealth Crimes legislation than the Copyright Act 1968 (Paragraph 5.2)
A civil right of action against a person who makes, imports, sells or lets for hire unauthorised decoding devices should be introduced. (Paragraph 5.2) The new civil right of action should:
(i) vest in the person who charged a fee for the intercepted transmission, or for whose benefit such fees were collected, or the maker of any encrypted transmission;
(ii) lie against any person who makes, imports, sells or lets for hire the unauthorised devices, and against any person who publishes information calculated to enable or assist any person who publishes information calculated to enable or assist any persons to receive services to which they are not entitled.
The same rights and remedies should be available against such persons as
would lie against copyright infringers. (Paragraph 5.2)
Section 26(3) of the Copyright Act1968, which permits the cable
diffusion of copyright material in premises where persons reside or sleep, is
inequitable in view of the commercial reasons for such exploitation. The
provision should be repealed. (Paragraph 6.1)
The ephemeral copying provisions in the Copyright Act1968 should
operate for the benefit of all broadcasters, but at present, and pending further
review, should not be extended to all transmissions to the public.
(i) The scope of the statutory licence for the use of sound recordings by broadcasters in section 109 of the Copyright Act1968 should apply only to broadcasts which are not offered in return for valuable consideration from the recipient of the broadcast.
(ii) Further consideration should be given to whether the statutory licence for free-to-air broadcasters should continue to operate, and that this should take place as part of the wide ranging review of the Act which has been proposed by the Minister for Justice.
The operation of section 212 of the Broadcasting Services Act should be narrowed to make it consistent with the circumstances in which retransmission is permitted set out in Recommendation 10. Section 212 should be amended to make it subject to the provisions of the Copyright Act 1968. Retransmission outside the licence area of the primary broadcast should not be permitted without the permission of the copyright owner.
Copyright Law Review Committee Updated: 26 March 1998