Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited
[2012] FCA 93
•15 February 2012
FEDERAL COURT OF AUSTRALIA
Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93
Citation: Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 Parties: PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LTD (ACN 000 680 704) v COMMERCIAL RADIO AUSTRALIA LIMITED (ACN 059 731 467) File number: NSD 92 of 2010 Judge: FOSTER J Date of judgment: 15 February 2012 Catchwords: COPYRIGHT – whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet Legislation: Acts Interpretation Act 1901 (Cth), s 15AB, s 46(1)
Broadcasting Services Act 1992 (Cth), ss 6, 11 and 14
Copyright Act 1968 (Cth), s 10(1), s 85(1)
Copyright Amendment (Digital Agenda) Act 2000 (Cth)
Copyright (International Protection) Regulations 1969 (Cth), reg 4, reg 7
Evidence Act 1995 (Cth), s 191
Legislative Instruments Act 2003 (Cth), s 13Dates of hearing: 7 and 8 October 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 134 Counsel for the Applicant: Mr R Cobden SC, Mr C Dimitriadis Solicitor for the Applicant: Gilbert + Tobin Counsel for the Respondent: Mr JM Hennessy SC Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 92 of 2010
BETWEEN: PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LTD (ACN 000 680 704)
ApplicantAND: COMMERCIAL RADIO AUSTRALIA LIMITED (ACN 059 731 467)
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
15 FEBRUARY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The proceeding be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 92 of 2010
BETWEEN: PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LTD (ACN 000 680 704)
ApplicantAND: COMMERCIAL RADIO AUSTRALIA LIMITED (ACN 059 731 467)
Respondent
JUDGE:
FOSTER J
DATE:
15 FEBRUARY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, Phonographic Performance Company of Australia Ltd (PPCA), is an incorporated copyright collecting society representing the interests of copyright owners and recording artists in relation to the broadcast, communication to the public and public performance of recorded music and music videos in Australia. It offers non-exclusive licences of the copyright in a large repertoire of commercially released sound recordings for particular purposes.
The respondent, Commercial Radio Australia Limited (formerly called “The Federation of Australian Radio Broadcasters Limited”) (CRA) is an incorporated industry body representing the interests of commercial radio broadcasters in Australia who make use of such sound recordings in their day-to-day commercial activities.
By an umbrella Licence Agreement dated 16 June 2000 between PPCA and CRA (the Industry Agreement), PPCA agreed to grant to each member of CRA a non-exclusive licence of “… the Broadcasting Right in the PPCA Sound Recordings” for the period from 1 July 1999 to 30 June 2003.
By further agreement between PPCA and CRA, the arrangements embodied in the Industry Agreement have continued in full force and effect notwithstanding that the nominated end date (30 June 2003) has long since passed.
The expressions “Broadcasting Right” and “PPCA Sound Recordings” are defined terms in both the Industry Agreement and in the Member Agreement contemplated by the Industry Agreement. The definition of each of those expressions is the same in both the Industry Agreement and in the Member Agreement.
In each agreement, “Broadcasting Right” means:
… the right, from time to time, to Broadcast Sound Recordings in Australia.
“Broadcast” is defined as meaning:
… the act described in s 85(1)(c) of the [Copyright Act 1968 (Cth)] as defined in s 10(1) of the [Copyright Act].
As at 16 June 2000, when the Industry Agreement was executed, s 85(1)(c) of the Copyright Act 1968 (Cth) (the Copyright Act) provided that copyright, in relation to a sound recording, is the exclusive right to (inter alia) broadcast the recording. At that time, “broadcast” was defined in s 10(1) of the Copyright Act to mean:
… transmit by wireless telegraphy to the public.
“Wireless telegraphy” was defined in s 10(1) of the Copyright Act as meaning:
… the emitting or receiving, otherwise than over a path that is provided by a material substance, of electromagnetic energy.
By defining “Broadcast” in the Industry Agreement and in the Member Agreement by reference to the act described in s 85(1)(c) of the Copyright Act, PPCA and CRA incorporated into those agreements the Copyright Act definition of “broadcast”, at least as it then stood and probably as it stood from time to time thereafter.
Significant amendments were made to the Copyright Act by the Copyright Amendment (Digital Agenda) Act 2000 (Cth) (the Digital Amendment).
As a result of the Digital Amendment, the definitions of “broadcast” and “wireless telegraphy” contained in s 10(1) of the Copyright Act were repealed. A new definition of “broadcast” was inserted. In addition, definitions of “communicate”, “simulcasting” and “to the public” were inserted into s 10(1). These expressions had not previously been defined in the Copyright Act.
The new definition of “broadcast” inserted into the Copyright Act by the Digital Amendment was in the following terms:
broadcast means a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.
Note: A broadcasting service does not include the following:
(a)a service (including a teletext service) that provides only data or only text (with or without associated images); or
(b)a service that makes programs available on demand on a point-to-point basis, including a dial-up service.
That definition remained as the definition of “broadcast” until 30 June 2010 when the definition was again amended (see Item 135 in Schedule 1 to Act No 94 of 2010).The 2010 amendment added a second sentence to the definition.
The 2010 amendment is of no present relevance.
Section 85(1)(c) was repealed by the Digital Amendment and a new s 85(1)(c) substituted therefor. The effect of that amendment was that s 85(1)(c) thereafter provided that copyright, in relation to a sound recording, is the exclusive right (inter alia) to:
… communicate the recording to the public.
The other rights specified in subs (1)(a), (b) and (d) of s 85 remained the same.
From at least about 2001 onwards, some radio stations which are members of CRA have streamed their radio programs on the Internet. This streaming service involves the simultaneous transmission of radio programs using the broadcasting services bands and the Internet. The content of the radio programs made available over the radio and via the Internet is the same.
PPCA contends that, as a result of the Digital Amendment and the interplay between certain provisions of the Broadcasting Services Act 1992 (Cth) (the Broadcasting Act) (including a Ministerial Determination made thereunder) and the terms of the Industry Agreement and the Member Agreement, upon the true construction of those agreements, the licence which PPCA agreed to grant to members of CRA did not include the right to make available to the public PPCA Sound Recordings in radio programs delivered via the Internet at the same time as making those recordings available to the public by means of a radio broadcast. The instances of simulcasting in this fashion proven by the evidence all involved an FM radio broadcast.
CRA argues, on the other hand, that the existing licence does include that right.
The parties are therefore in dispute as to the true construction of the Industry Agreement and the Member Agreement.
In this proceeding, PPCA seeks a declaration in terms of its preferred construction. CRA opposes the grant of any relief.
CRA is the only respondent to the proceeding. None of its member radio stations has been joined as a party to the proceeding.
The sole question raised in the proceeding concerns the interpretation of the Industry Agreement and the Member Agreement. The issue is: Does the existing licence which permits members of CRA to broadcast PPCA Sound Recordings in Australia encompass within its scope the playing of such recordings in both the FM radio programs delivered to the public using the broadcasting services bands and in the same radio programs delivered simultaneously to the public via the Internet?
To that question, PPCA answers “No” and CRA answers “Yes”.
THE PLEADED CASE AND CRA’S DEFENCE
PPCA pleads its case as follows:
(a)At all relevant times, PPCA has been the non-exclusive licensee in Australia of copyright in published sound recordings pursuant to input agreements entered into between PPCA, on the one hand, and owners or exclusive licensees for Australia of such copyright (the PPCA input agreements), on the other hand (SC par 3);
(b)Prior to 4 March 2001, the rights in the copyright in a sound recording made or first published in Australia or made by an Australian citizen or an Australian resident or a body incorporated under a law of Australia included the right to broadcast that recording (SC par 4(a));
(c)Prior to 4 March 2001, the rights in the copyright in a sound recording in which copyright subsisted by reason of the operation of reg 4 of the Copyright (International Protection) Regulations 1969 (Cth) as amended from time to time (the CIP Regulations) in relation to which the right to broadcast the recording was not excluded by reg 7 of the CIP Regulations included the right to broadcast that recording (SC par 4(b));
(d)Since 4 March 2001, the rights in the copyright in a sound recording described at subpars (b) and (c) above, have included the right to communicate the recording to the public, which right to communicate includes the right to broadcast that recording (SC par 5(a));
(e)Since 4 March 2001, the rights in the copyright of a sound recording which does not fall within the description of sound recordings contained in subpars (b) and (c) above, have included the right to communicate the recording to the public by certain means, including, over the Internet, but not including within that right to communicate, the right to broadcast the recording (SC par 5(b));
(f)At all relevant times, pursuant to the PPCA input agreements, PPCA has had the right to grant non-exclusive licences of the right to broadcast those sound recordings in respect of which its licensors are the owners or exclusive licensees for Australia of the copyright insofar as the copyright includes the right to broadcast (SC par 6(a));
(g)At all relevant times since 4 March 2001, pursuant to the PPCA input agreements, PPCA has had the right to grant non-exclusive licences of the right to communicate those recordings to the public by various means including as part of the simultaneous transmission of a broadcast over the Internet in circumstances where the broadcast is unaltered in respect of which recordings its licensors are the owners or exclusive licensees for Australia of the copyright insofar as it includes those rights (SC par 6(b)). (Note, in the Statement of Claim, the recordings described in subpar (f) above and in this subpar (g) are called the PPCA Recordings);
(h)On 16 June 2000, PPCA and CRA entered into the Industry Agreement (SC par 7);
(i)Pursuant to the Industry Agreement, PPCA agreed to grant to the members of CRA, on and subject to the terms of the Member Agreement (the terms of which are set out in Schedule 3 to the Industry Agreement), non-exclusive licences of the “Broadcasting Right in the PPCA Sound Recordings” (as defined in the Industry Agreement) in Australia (SC par 8);
(j)In accordance with the Industry Agreement, from time to time, members of CRA have been granted a non-exclusive licence of the Broadcasting Right in the PPCA Sound Recordings upon the terms of the Member Agreement. No Member Agreements have been formally executed but it is common ground that the non-exclusive licences granted to members under the umbrella of the Industry Agreement (Members Licences) were granted upon the terms and conditions of the Member Agreement which terms and conditions are set out in Schedule 3 to the Industry Agreement (SC par 9);
(k)The Industry Agreement and Members Licences have been operative since 1 July 1999. Although the term of those agreements is expressed to be for four years commencing on 1 July 1999 and ending on 30 June 2003, by agreement between PPCA, CRA and the individual members of CRA, the arrangements between the parties have continued in force beyond 30 June 2003 upon the same terms and conditions (SC par 10);
(l)Upon the true construction of the Industry Agreement and the Member Agreement, the right licensed to CRA and its members being the Broadcast Right in the PPCA Sound Recordings was:
(i)As at 16 June 2000 and thereafter until 4 March 2001, the right to broadcast those recordings which comprised the right to transmit those recordings by wireless telegraphy to the public (SC pars 11, 12 and 14(a));
(ii)With effect from 4 March 2001, the right to communicate to the public by means of a communication delivered by a “broadcasting service” within the meaning of that expression in the Broadcasting Act (SC pars 11, 13 and 14(b));
(m)When regard is had to the definition of “broadcasting service” in the Broadcasting Act and to the terms of a Ministerial Determination made on 12 September 2000 by the responsible Minister (Senator Alston) under the Broadcasting Act (No 1 of 2000) (the Ministerial Determination) the activities of some members of CRA in operating services that make available radio programs to the public using the Internet being services that involve the simultaneous transmission of radio programs delivered by use of the broadcasting services bands in circumstances where the content of those radio programs is unaltered, constitute communications of the PPCA Recordings to the public via the Internet and are not services that deliver radio programs using the broadcasting services bands. For these reasons, the services provided by the members of CRA via the Internet are within the scope of those services determined by the Ministerial Determination not to fall within the definition of “broadcasting service” in s 6(1) of the Broadcasting Act and therefore are not services which fall within the definition of “broadcasting service” in s 6(1) of the Broadcasting Act (SC pars 15–22);
(n)Therefore, the activities of the members of CRA who make available their radio programs to the public using the Internet in the manner described in subpar (m) above, are not within the scope of the licences granted to those members by PPCA pursuant to the Industry Agreement and the Members Licences (SC par 23);
(o)PPCA contends that, in the absence of a grant of further licences by PPCA or by the owners or exclusive licensees of copyright in the PPCA Sound Recordings, the activities of the members of CRA who provide their radio programs to the public via the Internet, very likely constitute infringement of copyright in the PPCA Sound Recordings (SC par 24); and
(p)Because CRA does not agree with PPCA’s interpretation of the Industry Agreement and the Member Agreement and thus does not accept that neither it nor any of its members has a licence to stream the members’ radio programs to the public via the Internet, the Court should make the declarations sought in the Application (SC pars 25 and 26).
In its Application, PPCA claims:
1.A declaration that the acts of members of the respondent pleaded in paragraph 20 of the statement of claim:
(a)do not involve the broadcast, as that term is defined in the Copyright Act 1968 (Cth) and reflected in the Industry Agreement pleaded in paragraph 7 of the statement of claim, of PPCA Recordings as defined in paragraph 6 of the statement of claim;
(b)are not within the scope of the licences the applicant agreed to grant to members of the respondent pursuant to the Industry Agreement pleaded in paragraph 7 of the statement of claim;
(c)are not within the scope of the Member Licences pleaded in paragraph 9 of the statement of claim; and
(d)involve the communication to the public otherwise than by way of broadcast, within the meaning of the Copyright Act 1968 (Cth), of PPCA Recordings as defined in paragraph 6 of the statement of claim.
2.Costs.
3. Such further or other orders or relief as the Court thinks fit.
The precise allegation made by PPCA in par 20 of its Statement of Claim is:
In the course of operating the services pleaded in paragraph 19 above, some members of CRA have communicated PPCA Recordings to the public via the Internet.
In its Defence, CRA admits all of the matters which I have set out at subpars (a) to (l) of [26] above (SC pars 3–14). It also admits that Senator Alston made the Ministerial Determination.
CRA also admits that, since at least May 2009, some members of CRA have simultaneously communicated to the public radio programs on the broadcasting services bands and over the Internet. CRA contends that the delivery of programs via the Internet was part of the provision by its members of broadcasting services within the meaning of the Broadcasting Act (par 4 of CRA’s Amended Defence filed on 7 May 2010). It also admits that in delivering radio programs via the Internet, some members have communicated PPCA Sound Recordings to the public via the Internet.
It is CRA’s case that the simultaneous delivery of radio programs via the Internet is within the scope of the Broadcasting Right in respect of the PPCA Sound Recordings in Australia (as defined in the Industry Agreement) and thus within the licence which, by the Industry Agreement, PPCA agreed to grant to each member of CRA and also within the licences which have been granted to members of CRA by PPCA upon the terms set out in the Member Agreement.
THE INDUSTRY AGREEMENT
As I have already mentioned at [3] above, the Industry Agreement is an agreement between PPCA and CRA. It is dated 16 June 2000.
Recital D in the agreement is in the following terms:
PPCA is prepared to grant a further broadcast licence to each of [CRA’s] members on the terms and conditions set out in this Agreement.
Clause 1 (Dictionary) provides that the Dictionary in Attachment A to the Industry Agreement defines some of the terms used in the Industry Agreement and sets out the rules of interpretation which apply to that agreement.
In the Dictionary, the following definitions appear:
Act means the Copyright Act 1968 as amended from time to time and any regulations made thereunder.
Broadcast means the act described in section 85(1)(c) of the Act as defined in Section 10(1) of the Act.
Broadcasting Right means the right, from time to time, to Broadcast Sound Recordings in Australia
…
Company means a licensee to PPCA from time to time.
…
Licence means a non-exclusive licence of the Broadcasting Right in the PPCA Sound Recordings granted by PPCA to the Member pursuant to the terms of a Member Agreement.
Licence Fee means the proportion of the Gross Licence Fee payable to PPCA by a Member pursuant to terms of the FARB Collection Agreement for the grant of a Licence.
Member means a commercial radio broadcaster licensed pursuant to the provisions of the Broadcasting Services Act 1992 which is a member of FARB as specified in the Second Schedule (as amended from time to time) and which has executed a FARB Collection Agreement that remains in force.
Member Agreement means the form of agreement specified in the Third Schedule.
…
PPCA Sound Recordings means the Sound Recordings, the Broadcasting Rights in which are owned or controlled by the Companies or any of them.
…
Radio Stations means the commercial radio broadcast services operated by the Members and known by their respective call signs as specified in the Second Schedule as amended from time to time.
…
Sound Recording means a sound recording in respect of which, as at the date of this Agreement, the Act grants a Broadcasting Right.
Clause 4.1 provides that, in consideration of CRA collecting from its members the licence fee specified in the Industry Agreement, PPCA agrees to grant:
… a Licence [as defined in the Dictionary], in accordance with and subject to the terms of the Member Agreement [as defined in the Dictionary], to each person who is a Member [as defined in the Dictionary] as at [1 July 1999] and to each person who becomes a Member during the [period when the Industry Agreement is operative]
provided that all of the requisite licence fees are actually paid to PPCA.
Clause 6 specifies the quantum of the Licence Fee payable under the Industry Agreement.
The form of Member Agreement contemplated by the Industry Agreement is set out in full in Schedule 3 to the Industry Agreement.
The terms of the Member Agreement cast further light on the scope of the licence which PPCA agreed to grant to members of CRA pursuant to the Industry Agreement.
The Recitals in the Member Agreement are in the following terms:
A.PPCA is a company established for the purpose of, inter alia, licensing the Broadcast of Sound Recordings.
B.The Licensee is the holder of a commercial radio broadcasting licence pursuant to the Broadcasting Services Act 1992.
C.The Licensee is a member of The Federation of Australian Radio Broadcasters Limited (FARB) which is an industry association representing commercial radio broadcasters.
D.The Licensee wishes to use various Sound Recordings for inclusion in its transmissions.
E.FARB has negotiated the terms and conditions upon which PPCA will grant a non-exclusive licence to Broadcast PPCA Sound Recordings in Australia to those of FARB’s Members who elect to participate by executing a FARB Collection Agreement which remains in force.
F.The Licensee has elected to participate in the licence negotiated by FARB by completing a FARB Collection Agreement.
G.PPCA has the right and authority for and on behalf of the Companies to grant a licence to Broadcast in Australia particular Sound Recordings and grants such a licence to the Licensee on the terms and conditions appearing in this Agreement.
The Federation of Australian Radio Broadcasters Limited is the former name of CRA.
Clause 1 (Dictionary) of the Member Agreement is in the same terms as cl 1 of the Industry Agreement. There are, however, some differences between the contents of the Dictionary in the Industry Agreement and the Dictionary in the Member Agreement.
The definitions of “Act”, “Broadcast”, “Broadcasting Right” and “PPCA Sound Recordings” are the same in both Dictionaries. However, the definitions of the other common expressions differ.
In the Dictionary forming part of the Member Agreement, the following definitions appear:
…
Company means a licensee to PPCA as specified in the Second Schedule from time to time and Companies has a corresponding meaning.…
Licence means the licence granted by PPCA to the Licensee pursuant to clause 3.1 of this Agreement.
Licence Fee means the fee payable by the Licensee for the grant of the Licence, the amount of which is to be determined in accordance with clause 4.
…
Radio Station means the commercial radio broadcast service known by the call sign specified in Item 2 of the First Schedule and in respect of which the Licensee is the holder of a licence pursuant to the provisions of the Broadcasting Services Act 1992.
…
Sound Recording means a sound recording (as defined in Section 10(1) of the Act) in respect of which, as at the date of this Agreement, the Act grants a Broadcasting Right or, in respect of sound recordings made after the date of this Agreement, the Act would have granted a Broadcasting Right if such sound recordings had been made as at the date of this Agreement.
There are no definitions in that Dictionary of “Member” or “Member Agreement”.
Clause 3.1 of the Member Agreement is in the following terms:
3.1In consideration of the payment of the Licence Fee in accordance with the terms of clause 4, PPCA hereby grants to the Licensee, for the purposes of the operation of the Radio Station and subject to the terms and conditions of this Agreement, a non-exclusive licence of the Broadcasting Right in the PPCA Sound Recordings.
Clause 4 provides for the payment of the requisite Licence Fee.
Schedule 2 to the Member Agreement is headed “[PPCA] Control of Broadcast and Public Performance Rights”. The names and addresses of the owners and exclusive licensees represented by PPCA are listed in Schedule 2.
The scope of the licence which PPCA agreed to grant to each member of CRA pursuant to cl 4.1 of the Industry Agreement is the same as the scope of the licence granted to each member pursuant to cl 3.1 of the Member Agreement.
Thus, the further question of construction which is embedded in the question which I have to determine is: What is the scope of the licence provided for in cl 3.1 of the Member Agreement?
THE RELEVANT PROVISIONS OF THE BROADCASTING ACT AND THE MINISTERIAL DETERMINATION
Some of the contentions made by the parties rely upon the current definition of “broadcast” in the Copyright Act. That definition refers to “… broadcasting service” within the meaning of the Broadcasting Act.
In the Broadcasting Act, “broadcasting service” is defined as follows:
broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a)a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b)a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or
(c)a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.
Section 11 of the Broadcasting Act provides:
11 Categories of broadcasting services
The following categories of broadcasting services are broadcasting services to which this Act relates:
(a)national broadcasting services;
(b)commercial broadcasting services;
(c)community broadcasting services;
(d)subscription broadcasting services;
(e)subscription narrowcasting services;
(f)open narrowcasting services;
(fa)international broadcasting services.
A “commercial broadcasting service” is defined in s 6 of the Broadcasting Act as a service the definition of which is found in s 14.
Section 14 provides:
14 Commercial broadcasting services
(1) Commercial broadcasting services are broadcasting services:
(a)that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and
(b)that provide programs that:
(i)are able to be received by commonly available equipment; and
(ii)are made available free to the general public; and
(c)that are usually funded by advertising revenue; and
(d)that are operated for profit or as part of a profit-making enterprise; and
(e)that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.
(2)For the purposes of the application of subsection (1) to a broadcasting service provided under a licence allocated under section 38C, assume that there is no conditional access system that relates to the broadcasting service.
A “commercial radio broadcasting service” is a commercial broadcasting service that provides radio programs (see the definition of that expression in s 6).
The concept of a “broadcast” is not defined in the Broadcasting Act. It is a word, however, which appears in many provisions throughout that Act.
A matter which both parties considered to be relevant to the question which I have to determine was the circumstance that, on 12 September 2000, in accordance with subpar (c) of the definition of “broadcasting service” in the Broadcasting Act, the responsible Minister (Senator Alston) made the Ministerial Determination which is in the following terms:
COMMONWEALTH OF AUSTRALIA
Broadcasting Services Act 1992
Determination under paragraph (c) of the definition of
“broadcasting service” (No. 1 of 2000)
I, RICHARD KENNETH ROBERT ALSTON, Minister for Communications, Information Technology and the Arts, under paragraph (c) of the definition of “broadcasting service” in subsection 6(1) of the Broadcasting Services Act 1992, determine that the following class of service does not fall within that definition:
a service that makes available television programs or radio programs using the Internet, other than a service that delivers television programs or radio programs using the broadcasting services bands.
Dated 12 September 2000
Both parties accepted that the Ministerial Determination was a valid determination which operated to exclude from the definition of “broadcasting service” in the Broadcasting Act the service described in that Determination. There is an issue between the parties as to the correct interpretation of the Ministerial Determination. I shall return to that issue later in these Reasons.
The parties were in agreement as to the status of the Ministerial Determination and as to the principles which govern its interpretation.
It is helpful, I think, at this point to address those matters now.
As I noted at [58] above, the Minister made the Ministerial Determination on 12 September 2000.
Notice of the Ministerial Determination appeared in the Gazette on 27 September 2000. Accordingly, the Ministerial Determination took effect on that day.
The Ministerial Determination and an accompanying Explanatory Statement were tabled in the Senate on 3 October 2000.
At that time, s 6(2) of the Broadcasting Act provided that the Ministerial Determination was a disallowable instrument. No motion for disallowance of the Ministerial Determination was ever put in the Parliament.
Accordingly, the Ministerial Determination was accorded the necessary Parliamentary scrutiny and, after the lapse of the disallowance period, became effective.
The Explanatory Statement tabled before the Senate at the same time as the Ministerial Determination was in the following terms:
EXPLANATORY STATEMENT
Broadcasting Services Act 1992
Determination under paragraph (c) of the definition of “broadcasting service”(No 1. of 2000)
Issued by the authority of the Minister for Communications,Information Technology and the Arts
The Broadcasting Services Act 1992 (the Act) provides for the regulation of broadcasting services and certain other electronic communications services. Division I of Part 10 of the Act creates offences for a person to provide certain kinds of broadcasting service unless the person has a licence to provide that service.
The term “broadcasting service” is defined in subsection 6(l) of the Act to mean:
“a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a)a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b)a service that makes programs available on demand on a point-to point basis, including a dial-up service; or
(c)a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.”
Subsection 6(2) provides that a determination under paragraph (c) of the definition of “broadcasting service” is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
The Minister for Communications, Information Technology and the Arts announced on 21 July 2000 that, following a review, the government had decided that Internet audio and video streaming should not be regarded as a broadcasting service for the purposes of the Act. The review was necessary because of a lack of legal certainty as to whether a streaming service that makes programs available on the Internet falls within the terms of paragraph (b) of the definition.
The purpose of the accompanying determination under paragraph (c) of the definition of “broadcasting service” in subsection 6(l) of the Act is to make it clear that audio and video streaming over the Internet are not broadcasting services.
The determination provides that a service that makes available television programs or radio programs using the Internet (other than a service that delivers television programs and radio programs using the broadcasting services bands) does not fall within the definition of a broadcasting service. The determination includes a service that uses the Internet, even if part of the means of delivery of the service is technology which may not clearly be part of the Internet, so long as the service does not deliver programs using the broadcasting services bands. For example, the determination will cover services which enable users to access material from the Internet using a wireless application protocol device such as a mobile phone, whether or not the wireless application protocol is itself part of the Internet.
The exclusion from the exemption for a service that delivers programs using the broadcasting services bands is necessary to prevent the exemption being exploited to deliver a defacto broadcasting service using those bands. "Broadcasting services bands" is defined in subsection 6(1) of the Act to mean that part of the radiofrequency spectrum that is designated under section 31 of the Radiocommunications Act 1992 as being primarily for broadcasting purposes and is assigned by the Minister to the Australian Broadcasting Authority for planning.
The accompanying determination commences on gazettal.
The tabling of an Explanatory Statement was required by the Federal Executive Council Handbook and by the Senate Standing Committee on Regulations and Ordinances.
As at 12 September 2000, s 46(1)(a) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) provided that, where an Act conferred upon any authority power to make, grant or issue any instrument, the Acts Interpretation Act was to apply to such instrument as if it were an Act. At the time when it was made, therefore, the Ministerial Determination fell to be construed as if it were an Act.
Section 15AB(1) of the Acts Interpretation Act provides as follows:
15AB Use of extrinsic material in the interpretation of an Act
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
Section 15AB(2)(e) provides that, without limiting the generality of subs (1), the material that may be considered in accordance with that subsection in the interpretation of a provision in an Act includes:
… any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
The Explanatory Memorandum constitutes an explanation issued under the authority of the responsible Minister for the exercise of the power delegated to him by the Parliament which was laid before the Senate during the disallowance period. It is a document to which the Court may have regard in interpreting the Ministerial Determination (as to which see s 15AB(1) and s 15AB(2)(e)).
Subsequently, the Ministerial Determination became subject to the requirements of the Legislative Instruments Act 2003 (Cth) (the Legislative Instruments Act). That Act has retrospective operation in respect of statutory instruments which were disallowable. The Ministerial Determination now appears on the Federal Register of Legislative Instruments.
Accordingly, the Ministerial Determination is a legislative instrument for the purposes of the Legislative Instruments Act and is to be interpreted in accordance with s 13(1) of that Act.
Section 13(1) of the Legislative Instruments Act provides as follows:
13Construction of legislative instruments
(1)If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:
(a)the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and
(b)expressions used in any legislative instrument so made have the same meaning as in the enabling legislation as in force from time to time; and
(c)any legislative instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the rule-maker.
In substance, s 13 picks up the relevant provisions of the Acts Interpretation Act, including s 15AB.
The parties included within the Joint Tender Bundle of five (5) volumes a great deal of additional extrinsic material. Each of them referred to some (but not all) of that material.
I shall only refer to this additional material to the extent that one or other of the parties relied upon it and to the extent that I consider it to be capable of providing assistance on the question of interpretation which I have to decide.
THE AGREED STATEMENT OF FACTS
For the purposes only of this proceeding, in accordance with s 191 of the Evidence Act 1995 (Cth), PPCA and CRA agreed certain facts. Those facts are set out in a document entitled “Agreed Statement of Facts” dated 23 February 2010 signed by the solicitors for the parties. That document is in the following terms:
This agreed statement of facts is provided in accordance with s 191 of the Evidence Act. The agreement as to facts and all admissions made are for the purpose of the proceedings only.
Capitalised terms have the meanings given in the statement of claim if not defined below.
The First Recording
1The sound recording Foreign Land by Eskimo Joe (the First Recording) was made in Australia and first published in Australia in 2009.
2 Copyright subsists in the First Recording pursuant to the Copyright Act.
3The copyright in the First Recording includes the right to communicate the recording to the public including, within that right, the right to broadcast the recording, within the meaning of the Copyright Act.
4Warner Music Australia Pty Limited is the owner or exclusive licensee for Australia of the copyright in the First Recording.
5Warner Music Australia Pty Limited has entered into an Input Agreement with PPCA pursuant to which it has granted to PPCA non-exclusively the right to grant licences of the following rights in relation to the First Recording:
(a)the right to broadcast the recording; and
(b)the right to communicate the recording to the public as part of the simultaneous transmission of a broadcast over the internet in circumstances where the content of the broadcast is unaltered.
6DMG Radio (Australia) Pty Ltd operates a commercial radio service known as Nova FM in the Sydney metropolitan area under the call sign 2SYD (Nova FM). Nova FM is a member of CRA that delivers radio programs using the broadcasting services bands within the meaning of the BS Act.
7Nova FM has been granted a licence by PPCA in the terms of the Member Licence pleaded at paragraph 9 of the statement of claim.
8On 12 January 2010 at 4.17pm, in the course of operating the commercial radio service referred to in paragraph 6 above, Nova FM:
(a)broadcast the First Recording using the broadcasting services bands within the meaning of the BS Act; and
(b)simultaneously caused the sounds of the First Recording to be streamed over the internet in a manner that was accessible via the URL circumstances where those sounds were unaltered,
and thereby communicated the First Recording to the public within the meaning of the Copyright Act (the First Communication).
9At the time of the First Communication, Nova FM was not licensed to broadcast the First Recording or communicate the First Recording to the public save to the extent that it is licensed to do so pursuant to the Member Licence referred to in paragraph 7 above.
The Second Recording
10The sound recording Bulletproof by La Roux (the Second Recording) was made in the United Kingdom and first published in the USA in 2009.
11Copyright subsists in the Second Recording pursuant to the Copyright Act.
12The copyright in the Second Recording includes the right to communicate the recording to the public including, within that right, the right to broadcast the recording, within the meaning of the Copyright Act.
13Universal Music Australia Pty Limited is the owner or exclusive licensee for Australia of the copyright in the Second Recording.
14Universal Music Australia Pty Limited has entered into an Input Agreement with PPCA pursuant to which it has granted to PPCA non-exclusively the right to grant licences of the following rights in relation to the Second Recording:
(a) the right to broadcast the recording; and
(b)the right to communicate the recording to the public as part of the simultaneous transmission of a broadcast over the internet in circumstances where the content of the broadcast is unaltered.
15Austereo Pty Ltd operates a commercial radio service known as 2DAYFM in the Sydney metropolitan area under the call sign 2DAY (2DayFM). 2DayFM is a member of CRA that delivers radio programs using the broadcasting services bands within the meaning of the BS Act.
162DayFM has been granted a licence by PPCA in the terms of the Member Licence pleaded at paragraph 9 of the statement of claim.
17On 15 January 2010 at 5.14pm, in the course of operating the commercial radio service referred to in paragraph 15 above, 2DayFM:
(a)broadcast the Second Recording using the broadcasting services bands within the meaning of the BS Act; and
(b)simultaneously caused the sounds of the Second Recording to be streamed over the internet in a manner that was accessible via the URL circumstances where those sounds were unaltered,
and thereby communicated the Second Recording to the public within the meaning of the Copyright Act (the Second Communication).
18At the time of the Second Communication, 2DayFM was not licensed to broadcast the Second Recording or communicate the Second Recording to the public save to the extent that it is licensed to do so pursuant to the Member Licence referred to in paragraph 16 above.
The Third Recording
19The sound recording The Flame by Cheap Trick (the Third Recording) was made in the USA and first published in the USA in 1988.
20 Copyright subsists in the Third Recording pursuant to the Copyright Act.
21The copyright in the Third Recording does not include the right to broadcast the recording but does include the right to communicate the recording to the public by other means including over the internet, within the meaning of the Copyright Act.
22Sony Music Entertainment (Australia) Pty Limited is the owner or exclusive licensee for Australia of the copyright in the Third Recording.
23Sony Music Entertainment (Australia) Pty Limited has entered into an Input Agreement with PPCA pursuant to which it has granted to PPCA non-exclusively the right to grant licences of the right to communicate the Third Recording to the public as part of the simultaneous transmission of a broadcast over the internet in circumstances where the content of the broadcast is unaltered.
24Australian Radio Network Pty Limited operates a commercial radio service known as 101.7 WSFM in the Sydney metropolitan area under the call sign 2UUS (101.7 WSFM). 101.7 WSFM is a member of CRA that delivers radio programs using the broadcasting services bands within the meaning of the BS Act.
25101.7 WSFM has been granted a licence by PPCA in the terms of the Member Licence pleaded at paragraph 9 of the statement of claim.
26On 12 January 2010 at 11.45am, in the course of operating the commercial radio service referred to in paragraph 24 above, 101.7 WSFM:
(a)broadcast the Third Recording using the broadcasting services bands within the meaning of the BS Act; and
(b)simultaneously caused the sounds of the Third Recording to be streamed over the internet in a manner that was accessible via the URL (by clicking on the Link “Listen Live!”) in circumstances where those sounds were unaltered,
and thereby communicated the Third Recording to the public within the meaning of the Copyright Act (the Third Communication).
27At the time of the Third Communication, 101.7 WSFM was not licensed to broadcast or communicate to the public the Third Recording save to the extent that it is licensed to do so pursuant to the Member Licence referred to in paragraph 25 above.
THE EVIDENCE OF MR DECEAN
CRA called as a witness Desmond Ray DeCean, who is a broadcasting consultant to the radio broadcasting industry. He is also a director of a small manufacturing company which provides technological solutions for digital broadcasting. Mr DeCean holds trade qualifications in broadcast operation and television operation. He has almost 50 years of experience in various roles with television and radio broadcasters. He has a senior role with CRA’s Digital Technical Advisory Committee which is the industry engineering committee responsible for the development, introduction and rollout of DAB+ Digital Radio Broadcasting (DAB+) in Australia.
Mr DeCean swore an affidavit on 10 August 2010. At paragraphs 5–10 of that affidavit, he said:
The development of technologies
5.In the course of my career in the radio broadcasting industry, I have seen significant technological developments which have expanded the platforms on which radio broadcasts have been made available to the public, including:
(a)the introduction and development in Australia of FM radio in the 1980s;
(b)in the late 1980s, simulcasting of the audio of some television programs on radio, for instance, SAFM’s simulcast of a Channel Ten music program (called Simulrock) for 4 years from 1987 and Triple M’s simulcast of some Channel Ten live concerts and feature music programs. Triple M is also a part of Austereo’s network;
(c)the commencement of commercial simulcasting on the internet in or around 2001; and
(d)most recently, the commencement of DAB+, that is, digital radio transmission, in May 2009.
Beginning of simulcasting over the internet
6. DMG Radio Australia, the owner and operator of the Nova FM network, was the first commercial radio network to commence continuous simulcasting on the internet, of its Nova FM station, on 1 April 2001.
7.In July 2002, Austereo commenced internet simulcasting to the public of its FM stations, such as 2Day FM and Triple M in Sydney. It is my understanding that Austereo was the second commercial radio station to begin commercial simulcasting on the internet.
The technological process of radio broadcasting
8.I provide below a summary of the technological process of radio broadcasting:
(a)there are various sources of content which a radio station broadcasts. The sources include live announcers, music files, callers who phone in, advertisements and pre-recorded material. These services are fed through to equipment (particularly mixers and amplifiers) that concentrate them and convert them into a single stream for broadcast;
(b)at a radio station’s premises, there is, typically, an array of equipment used by that radio service in the course of its broadcasts. Relevantly, for present purposes, that equipment includes a studio mixer and distribution amplifier;
(c)at the studio mixer, the content is gathered from the various sources referred to in sub-paragraph (a) above and mixed together in an audibly pleasing way, by which I mean the content is blended so that the transition is seamless, the content is of a common style and the volumes are appropriately adjusted, to create one continuous audio stream (the radio program);
(d)the single audio stream is sent to a ‘distribution amplifier’ which takes the stream and replicates it into several equal streams (typically 4) which are all exact replicas of each other and of the original input audio stream;
(e)the audio stream is then:
(i)sent to one or more terrestrial transmitters (that is transmitters other than satellites that send signals over the airwaves), which transmit:
(A)analogue signals on the AM or FM bands, or possibly both; and/or
(B)digital signals on the digital radio band; and
(ii)sent to web stream servers;
(f)the terrestrial transmitters broadcast the signals directly to listeners’ receivers over the designated parts of the radiofrequency spectrum;
(g)web stream servers allow listeners with internet connected devices (such as a computer) to listen to the audio stream via the internet. These web stream servers act as a point of dissemination so that listeners with an internet connected device are able to click on a link on the radio station’s website which then connects their device to the web stream server. This activates the delivery of an audio feed (that is, the radio program) onto their device.
9. When I refer in this affidavit to a ‘simulcast’, I mean to describe the situation where the audio content is broadcast by a radio service via two or more broadcast platforms (that is, AM/FM transmission, digital transmission or web streaming). A typical example of simulcast occurs when a radio station sends out an audio stream to an FM transmitter, digital radio transmitter and an internet web stream server at the same time. This audio stream may then be received by a person having an appropriate device. This may be a radio receiver (an analog AM/FM receiver), a DAB+ receiver, a computer or a mobile phone, or any other device with capacity to access the internet (such as an Apple iPad).
10.Annexed to this affidavit and marked ‘A’ is a diagram which I have caused to be created which describes the broadcast process that I have referred to above.
Annexure “A” to Mr DeCean’s affidavit is a diagram. I reproduce that diagram below:
PPCA took several objections to Mr DeCean’s affidavit. Those objections are recorded in a document styled “PPCA’s Objections to CRA’s Affidavit Evidence” dated Michaelmas 2010 which is in the Court file. The objections are technical. The parties agreed that they should be resolved in accordance with agreed rulings set out in the objections documents. At the trial, I made rulings in accordance with the parties’ agreed rulings. Those rulings do not diminish the substance of Mr DeCean’s evidence contained in his affidavit.
Mr DeCean was cross-examined by Senior Counsel for PPCA. Senior Counsel did not attack Mr DeCean’s credit nor did he attempt to challenge the contents of his affidavit. Rather, the cross-examination was designed to elicit additional matters which were intended to assist PPCA’s case.
Mr DeCean was an impressive witness whose evidence I have no hesitation in accepting. He was forthright and knowledgeable and provided considerable assistance to the Court.
The additional relevant evidence given by Mr DeCean in cross-examination may be summarised as follows:
(a)The regulatory framework governing the operations of commercial radio stations impacts on the technical activities of those radio stations. For example, the confining of radio broadcasts of a particular radio station to the geographical areas permitted by that radio station’s licence is partly maintained by technical means.
(b)Some technological developments which expanded the platforms upon which radio programs are now made available to the public have gone hand-in-hand with regulatory changes. For example, the development of FM radio from a technical perspective was accompanied by a regulatory change to enable FM radio operators to use the FM part of the frequency spectrum.
(c)The radio broadcasting services bands constitute a subset of the whole radiofrequency spectrum.
(d)Some operations which are fairly described as radio stations engage in broadcasting programs outside the broadcasting services bands.
(e)In the radio broadcast process discussed by Mr DeCean in his affidavit, when the signal leaves the AM transmitters and FM transmitters it is converted into an appropriate signal to be sent over the AM or FM wireless masts to the appropriate radio receivers which then convert that signal back into an electrical audio signal and ultimately into an audible sound by the use of speakers. On some occasions in the past, the same program has been broadcast at the same time to FM and AM transmitters and beyond. This has been more the exception than the rule.
(f)Since the 1990s, there has been an increasing amount of digitisation deployed in the process.
(g)In 2002, the signal which emanated from the distribution processes to the webstream servers and to the FM transmitters was, generally speaking, partly digital and partly analogue. When that signal left the webstream server, it had to be delivered to a server having been encoded and compressed into an appropriate computer file for that purpose. That is a server available as a particular web address which the user (or consumer) can access via his or her PC or Mac. The user who accesses the web address in this way then receives data packets from the server which are coded audio signals which are then decoded. Once decoded, they sound the same as the modulated signal sent to radio via the FM wireless mast. There may be a slight difference in quality but the sound is essentially the same. There is also a slight delay when webstream servers are engaged in the process but there is no break in the transmission. There is no delay in the delivery of the content to the webstream server. The link to the web address may be clicked by anyone in Australia as long as the person has the necessary computer equipment.
(h)Datacasting is an expression used to describe the provision of data over the broadcast services bands. Towards the end of the 1990s, there was a lot of discussion about datacasting in government circles and in the radio and TV industries although nothing much happened to datacasting.
THE ARGUMENTS OF THE PARTIES
PPCA’s Submissions
PPCA filed a detailed Written Submission in Chief dated 16 September 2010. The essence of its case as expounded in that submission and orally may be summarised as follows:
(a)In the Industry Agreement and the Member Agreement, the meaning of the term “Broadcast” from time to time is the same as the meaning attributed to that term in the Copyright Act from time to time. Thus:
(i)Prior to 4 March 2001, “Broadcast” meant “… transmits by wireless telegraphy to the public”; and
(ii)From 4 March 2001, “Broadcast” has meant “… a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Act”.
(b)The propositions in (a) are agreed by CRA. This is the effect of CRA’s admitting the matters pleaded in pars 12–14 of the Statement of Claim.
(c)As at 12 September 2000, one of the exclusive rights afforded to PPCA comprised in the copyright attached to the PPCA Sound Recordings was the right to broadcast those recordings which at that time meant the right to transmit those recordings by wireless telegraphy to the public (see the definitions in force at that time of “broadcast” and “wireless telegraphy” in s 10(1) of the Copyright Act and the terms of s 85(1)(c) of that Act in force at that time). By the Digital Amendment, that exclusive right was expanded to encompass a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Act. This new exclusive right subsumed the right to broadcast the PPCA Sound Recordings. Thus, from 4 March 2001, PPCA had a new expanded exclusive right the limits of which are determined by s 85(1)(c) of the Copyright Act read with the definitions of the expressions “communicate” and “to the public” in s 10(1) of that Act.
(d)The current definition of “broadcast” in the Copyright Act directs attention to the concept of a “broadcasting service” within the meaning of the Broadcasting Act. That is to say, only a “broadcast” delivered by a “broadcasting service” is a broadcast within the meaning of that term in the Copyright Act.
(e)Services that the responsible Minister determines are not within the definition of “broadcasting service” are excluded from that definition. Here, the Minister excluded from the definition of “broadcasting service” the Internet transmissions of radio programs by the members of CRA whether sent as an independent transmission or as part of a simulcast involving an FM radio broadcast.
(f)The question of construction raised in the present proceeding is, therefore, answered once the true interpretation of the Ministerial Determination is resolved.
(g)The interpretation of the Ministerial Determination described in subpar (e) above is the correct interpretation because:
(i)The Internet transmissions of radio programs by the members of CRA are:
… a service that makes available television programs or radio programs using the Internet
within the first part of the Ministerial Determination.
(ii)Those transmissions are not made over that part of the radiofrequency spectrum designated under the Broadcasting Act as the broadcasting services bands. Those bands are that part of the radiofrequency spectrum used for radio and television broadcasts.
(iii)Because the Internet transmissions of radio programs by CRA members are not made over the broadcasting services bands, those transmissions are not delivered by:
… a service that delivers television programs or radio programs using the broadcasting services bands.
For this reason, the carve-out of certain services from the exemption in the Ministerial Determination at the end of that determination does not apply.
(iv)Therefore, the Ministerial Determination applies to the Internet transmissions in the present case with the consequence that those Internet transmissions are not delivered by a “broadcasting service” within the meaning of the definition of that expression in s 6(1) of the Broadcasting Act.
(h)Whilst it may be accepted that the FM radio programs transmitted by CRA members over the relevant part of the radiofrequency spectrum are “broadcasts” within the meaning of that term in the Copyright Act, the separate yet parallel transmissions of the same radio programs via the Internet are not “broadcasts”. For this reason, those Internet transmissions are not licensed under the Industry Agreement or the Member Agreement.
(i)By contrast, CRA’s interpretation of the Ministerial Determination strains the language of that instrument.
(j)The statutory context and relevant extrinsic materials support PPCA’s contentions.
CRA’s Submissions
CRA also filed a detailed Written Submission in support of CRA’s position. That submission is dated 29 September 2010.
Paragraphs 1 to 4 of that submission capture the essence of CRA’s argument. In those paragraphs, CRA submitted as follows:
1.The issue in this proceeding is whether a radio station that communicates a radio program simultaneously over the radio frequency spectrum (i.e. the “broadcasting services bands”) and the Internet (a Simulcast) is a “broadcasting service” within the meaning of s.6(1) of the Broadcasting Services Act 1992 (Cth) (the BSA). The respondent (CRA) submits that this is so and that a radio station is licensed by the Australian Communications and Media Authority (ACMA) under Part 4 of the BSA to do so.
2. In broad terms, CRA’s position is as follows:
(a)a radio station is a “commercial radio broadcasting service” within the meaning of s.6(l) of the BSA, i.e. it provides radio programs;
(b)it operates pursuant to an individual licence, namely a “broadcasting services bands licence”, issued to it by ACMA;
(c)that licence enables it to use the broadcasting services bands, however the BSA does not limit the radio station to using only those means to deliver radio programs; [Definition of “broadcasting services bands licence” under s.6(1) of the BSA.]
(d)when a radio station delivers radio programs by using a combination of means it does so as a “broadcasting service” within the meaning of s.6(l) of the BSA [The definition of “broadcasting service” has not changed since the BSA commenced in 1992] unless, relevantly, the Minister determines that the “service” (i.e. the radio station) does not fall within the definition of a broadcasting service;
(e)a radio station that Simulcasts does so by using a combination of means (radiofrequency spectrum/broadcasting services bands and cable, optical fibre and other means) and is therefore, prima facie, a broadcasting service as long as the Minister does not determine that the radio station, by the nature of its activities, does not fall within the definition;
(f) shortly before the Ministerial Determination was made there was concern on the part of the Internet industry (not the broadcasting industry) that Internet content providers (not radio stations) who transmitted audio-video content over the Internet using emerging internet streaming technology might fall within the definition of a “broadcasting service” and therefore be subject to the BSA’s regulatory regime for broadcasters;
(g)the Ministerial Determination was responsive to the concerns of the Internet industry [See the media release of Senator the Hon Richard Alston dated 27.9.00 (CB3/36)] in that it ensured that Internet content providers were not to be classified pursuant to the BSA as broadcasting services. It did so by excluding from the definition a “service” that makes radio programs available using the Internet (i.e. an Internet content provider), but it carved-out from that exclusion a service (i.e. a radio station) that delivers radio programs using the broadcasting services bands;
(h)radio stations began to Simulcast in about April 2001; the combination of means used by them to make those communications (referred to in subparagraph (e) above) includes the use of broadcasting service bands and therefore those radio stations fall within the carve-out in the Ministerial Determination and have maintained their status under the BSA as “broadcasting services”; and
(i)(in addition to the plain meaning and operation of the BSA and the Ministerial Determination as outlined above) references in particular to Parliamentary and extrinsic materials support the above construction.
3. PPCA contends that a radio station that Simulcasts has a dual personality; it is both a broadcasting service, in so far as its communication of the radio program is made over the radio frequency spectrum, and something else, in so far as its communication of the very same radio program over the Internet is concerned.
4.In the event that the Court prefers CRA’s construction of the BSA and Ministerial Determination, it will follow that a radio station that Simulcasts will be taken to be a broadcasting service and therefore engaged in an act of broadcasting for the purposes of the Copyright Act 1968 (Cth) (the CR Act) and the Member Licence.
I pause to observe at this point that the media releases issued by Senator Alston in July and September 2000 in respect of the Ministerial Determination and the Explanatory Memorandum which accompanied the tabling of that Determination in the Senate confirm the correctness of the facts asserted in subpars (f) and (g) of par 2 of CRA’s Written Submission. The Ministerial Determination was not intended to address any copyright issues.
In the balance of CRA’s Written Submission and orally, Counsel for CRA developed the submissions summarised in pars 1–4 of CRA’s Written Submission.
CRA submitted the following:
(a)It was a term of the Industry Agreement that PPCA would grant each of CRA’s members a non-exclusive licence to broadcast sound recordings in return for an annual Gross Licence Fee.
(b)The Member Agreement takes into account and reflects the regulated market in which the radio station operates. Thus, in cl 3.1 of the Member Agreement, the licence is said to be granted by PPCA to the member radio station “… for the purposes of the operation of the Radio Station”. In the Member Agreement “Radio Station” is defined as:
… the commercial radio broadcast service known by the call sign specified in Item 2 of the First Schedule and in respect of which the Licensee is the holder of a licence pursuant to the provisions of the Broadcasting Services Act 1992.
In other words, the relevant radio station must be a “broadcasting service” within the meaning of s 6(1) of the Broadcasting Act and must also hold a Broadcasting Licence within the meaning of that Act and therefore be subject to the regulatory regime for broadcasters provided for in that Act.
(c)Pursuant to the Member Agreement, PPCA grants to the radio station a non-exclusive licence of the “Broadcasting Right”, as defined in that agreement, in the PPCA Sound Recordings in return for payment, via CRA as the member’s agent, of a “Licence Fee”. Recital D in the Member Agreement provides that the radio station wishes to utilise the PPCA Sound Recordings “… for inclusion in its transmissions”. Neither the purpose nor the scope of the radio station’s operations and transmissions are circumscribed by the terms of the Member Licence.
(d)It follows that, for so long as a member radio station operates as a broadcasting service and holds a licence for it to do so, it is licensed by PPCA to use PPCA Sound Recordings in its radio program.
(e)The Broadcasting Right, as defined in the Industry Agreement and the Member Agreement, was amended by the Digital Amendment.
(f)The amendments to the Copyright Act took effect from 4 March 2001. Since that time, each radio station, as a non-exclusive licensee of the Broadcasting Right, has had the right to make available online or electronically to transmit PPCA Sound Recordings to the public as long as it does so as a broadcasting service.
(g)In order to succeed, PPCA must demonstrate that a radio station that communicates the same radio program over both the broadcasting services bands and the Internet is not a broadcasting service insofar as the communication over the Internet is concerned.
(h)The regulatory framework embodied in the Broadcasting Act proceeds upon the basis that regulation will focus on the nature of the service rather than the entities performing that service.
(i)The definition of “broadcasting service” in the Broadcasting Act focuses on the concept of a “service”.
(j)For present purposes, it is not in issue that a radio station that delivers a radio program using the radiofrequency spectrum (broadcasting services bands) is a broadcasting service within the meaning of s 6(1) of the Broadcasting Act. It is the use of that spectrum in combination with cable, optical fibre or other means (to deliver radio programs over the Internet) that is in issue.
(k)The Ministerial Determination adopted a drafting technique whereby the initial part of the Determination described a service that was excluded from the definition of “broadcasting service” within the meaning of that expression in s 6(1) of the Broadcasting Act and then brought back into that definition (provided that it was always there) by way of a carve-out:
… a service that delivers television programs or radio programs using the broadcasting services bands.
(l)The Ministerial Determination excluded Internet content providers (ie services that communicate radio program content over the Internet only) and at the same time “re-included” within the definition of “broadcasting service” radio stations that communicate radio programs over the broadcasting services bands only. What is controversial is the breadth of both the exclusion and the carve-out insofar as simulcasts of the kind evidenced in the Agreed Statement of Facts are concerned.
(m)If the carve-out is applicable, the exclusion never applied.
(n)PPCA construes the word “service” in the Ministerial Determination as an adjective which describes the mode of delivery of the content in question rather than as a description of the broadcasting entity. The effect of PPCA’s interpretation is that a radio station which simulcasts the same radio program via the radiofrequency spectrum and via the Internet is and is not a “broadcasting service” within the meaning of that expression in s 6(1) of the Broadcasting Act.
(o)A “service” cannot be subdivided in this way.
(p)The Internet communications made by the radio station members of CRA are “broadcasts” because the radio stations which make them are “broadcasting services” within the meaning of that expression in s 6(1) of the Broadcasting Act. This is so because they hold commercial radio broadcasting licences which do not preclude them from using the Internet as a means of delivery of their radio programs.
(q)The interpretation propounded by PPCA is inconsistent with the objects of the Broadcasting Act and the regulatory regime.
CONSIDERATION
The ultimate issue which I must determine is whether the simulcast reproduction of PPCA Sound Recordings by certain members of CRA as part of the transmission made by those members of their radio programs to the public via the Internet is within the licence which, under the Industry Agreement, PPCA agreed to grant to the members of CRA and which, under the Members Licences, PPCA in fact granted to certain members of CRA.
The subject matter of the licence agreed to be granted under the Industry Agreement and actually granted pursuant to the Members Licences is the same. It is:
… a non-exclusive licence of the Broadcasting Right in the PPCA Sound Recordings
(Clause 4.1 of the Industry Agreement and cl 3.1 of the Member Agreement).
Under the Member Agreement, that licence is granted:
… for the purposes of the operation of the Radio station and subject to the terms and conditions of [the Member] Agreement
(Clause 3.1).
The definition of “Broadcasting Right” is the same in both the Industry Agreement and the Member Agreement. That definition is:
“Broadcasting Right” means the right, from time to time, to Broadcast Sound Recordings in Australia.
A “Sound Recording” is defined in the Industry Agreement as meaning:
… a sound recording in respect of which as at the date of this Agreement, the Act grants a Broadcasting Right.
A “Sound Recording” is defined in the Member Agreement as meaning:
… a sound recording (as defined in section 10(1) of the Act) in respect of which, as at the date of this Agreement, the Act grants a Broadcasting Right or, in respect of sound recordings made after the date of this Agreement, the Act would have granted a Broadcasting Right if such sound recordings had been made as at the date of this Agreement.
In s 10(1) of the Copyright Act, “sound recording” is defined as meaning the aggregate of sounds embodied in a record. “Record” is defined widely in s 10(1).
In both the Industry Agreement and the Member Agreement, “Broadcast” is defined as meaning:
… the act described in section 85(1)(c) of the [Copyright] Act as defined in s 10(1) of the Act.
The definition of “Sound Recording” in the Industry Agreement and in the Member Agreement incorporates the statutory definition of that expression found in s 10(1) of the Copyright Act. In addition, “Sound Recording” as expressed in those agreements is said to be a sound recording in respect of which the Copyright Act grants a Broadcasting Right. The Copyright Act does not, of itself, grant any broadcasting rights. Rather, that Act (inter alia) specifies the nature of copyright in relation to a sound recording in the sense that it specifies the exclusive rights which flow from the possession of copyright in such a recording.
In order that the requirements of the contractual definitions are met, the sound recording must be one which the copyright owner has the exclusive rights to broadcast pursuant to the Copyright Act and thus the entitlement to grant a licence to another to broadcast that sound recording.
Interpreting these definitions in this way makes sense of the text in the definitions and avoids the circularity apparently caused by the incorporation into the definition of “Broadcasting Right” in the agreements of the term “Sound Recordings” and the incorporation into the definition of “Sound Recording” the concept of “Broadcast Right”.
The PPCA Sound Recordings are those Sound Recordings, the Broadcasting Rights in which are controlled by the licensees to PPCA.
“Broadcast” means:
… the act described in section 85(1)(c) of the [Copyright] Act as defined in s 10(1) of the Act.
Taking the definitions of “Broadcast” and “Broadcasting Right” and feeding those definitions into cl 4.1 of the Industry Agreement and cl 3.1 of the Member Agreement, the licence agreed to be granted and actually granted by PPCA is a non-exclusive licence of the right to broadcast the PPCA Sound Recordings in Australia from time to time.
“Broadcast” takes its meaning from the definition of “broadcast” in s 10(1) of the Copyright Act.
The words “… the act described in s 85(1)(c) of the Act” which appear in the definition of “Broadcast” in the agreements are intended to be a convenient way of incorporating into the contractual definition of “Broadcast” the definition of “broadcast” in s 10(1) of the Copyright Act as it may be from time to time (see also the definition of “Act” in the agreements which provides that the word means the Copyright Act 1968 as amended from time to time and any regulations made thereunder). The contractual definition was intended by the parties to replicate the statutory definition found in the Copyright Act from time to time. The parties intended that PPCA would license to the members of CRA the broadcast right in respect of its sound recordings which was reserved to the copyright owner or exclusive licensee to the full extent of that right as allowed under the Copyright Act. In other words, whatever broadcast right PPCA had to give was the subject of the licence which it granted to the CRA members.
The parties agree that the term “Broadcast” in the Dictionary of the Industry Agreement and in the Dictionary of the Member Agreement has the same meaning as that term has in the Copyright Act from time to time as provided for in the definitions section of that Act (s 10(1)) (see par 14 of the Statement of Claim which is admitted by CRA). That agreement was soundly based.
The amendments effected by the Digital Amendment meant that the exclusive right granted to the copyright owner or licensee pursuant to s 85(1)(c) of the Copyright Act was considerably expanded from 4 March 2001. It now clearly covers the right to make available a sound recording in respect of which copyright subsists via the Internet.
Nonetheless, that expanded right also includes (or has subsumed) the right to broadcast the sound recording. The concept of “communicate” as defined in s 10(1) covers broadcasting.
For these reasons, as the parties submitted, the scope of the licence agreed to be granted and in fact granted by PPCA to members of CRA depends upon a consideration of the current definition of “broadcast” in the Copyright Act.
Relevantly, “broadcast” in that Act means “… a communication to the public delivered by a broadcasting service within the meaning of [the Broadcasting Act]”.
I have set out or referred to the relevant provisions of the Broadcasting Act at [52]–[57] above.
The concept of a “service” when used in the definition of “broadcasting service” in the Broadcasting Act encompasses the entire business activity carried on by the service provider. It carries with it the notion of all that is required to produce the end-product—the identity of the service provider and all of the processes, equipment and know-how which is brought to bear in the delivery of the radio programs made available by that service.
The Broadcasting Act regulates activities and by that means regulates the entities which carry on those activities.
The definition of “Radio Station” and “Radio Stations” in the agreements describes the radio broadcast services as something operated (or provided) by the members of CRA. This is consistent with “service” being something greater than the entities which provide the service.
Relevantly, the definition of “broadcasting service” requires that the “service” must deliver radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum or any of the other specified means or a combination of any of those means.
In my view, subject to consideration of the exclusions specified in subpars (a) to (c), the definition of “broadcasting service” in s 6(1) of the Broadcasting Act encompasses the delivery of radio programs via the Internet whether alone or as a simulcast of the same program via the FM band.
In order for the Ministerial Determination to be valid, it must meet the requirements of subpar (c) of the definition of “broadcasting service”. Those requirements are that the Minister must determine that a service, or class of services, do not fall within the definition of “broadcasting service” and must publish notice of his determination in the Commonwealth Gazette. The determination must be expressed in language which excludes a service or class of services from the definition.
In the present case, the Minister complied with these requirements. By the determination, he excluded from the definition of “broadcasting service”:
… [any] service that makes available television programs or radio programs using the Internet
and then excepted from that exclusion:
… [any] service that delivers television programs or radio programs using the broadcast services bands.
The effect of the exception to the exclusion provided for in the Ministerial Determination is to carve out of the service which is excluded by dint of the Ministerial Determination the services described in the exception provided that they are covered by the principal part of the definition of “broadcasting service” (ie the first four lines) in any event.
In my view, the exclusion effected by the first line and a half of the Ministerial Determination, considered alone and without regard to the exception to that exclusion effected by the balance of the Determination, would remove from the definition of “broadcasting service” radio programs using the Internet whether or not delivered simultaneously with identical radio programs broadcast to FM or AM radio receivers.
Thus, the ultimate question confronting the Court falls to be decided by interpreting the exception to the exclusion provided for in the Ministerial Determination.
The broadcasting services bands are a subset of the whole radiofrequency spectrum. The expression is defined in s 6(1) of the Broadcasting Act. Their use is regulated by the Australian Communications and Media Authority which issues broadcasting services bands licences to broadcasting services under Pt 4 of the Broadcasting Act.
According to Mr DeCean, the radio program itself is one continuous audio stream (par 8(c) of his affidavit extracted at [81] above). The single audio stream is sent to a “distribution amplifier” which takes the stream and replicates it into several equal streams which are all exact replicas of each other and of the original audio stream (par 8(d) of Mr DeCean’s affidavit). The audio stream is then sent to one or more terrestrial transmitters and web stream servers (par 8(e) of Mr DeCean’s affidavit). The terrestrial transmitters then send the audio stream over parts of the radiofrequency spectrum (the broadcasting services bands) while the stream servers send it over the Internet (par 8(f) and 8(g) of Mr DeCean’s affidavit). Mr DeCean describes each of AM/FM transmission, digital transmission and web streaming as a broadcast by a radio service via two or more broadcast platforms.
That which is excepted from the exclusion in the Ministerial Determination is a “service”. The exception is not concerned with particular delivery platforms or the programs themselves. Rather, it is directed to the “service” in the sense of the entire business providing the programs. The “service” covered by the exception is:
… [any service] that delivers television programs or radio programs using the broadcast services bands.
The FM radio programs which are simulcast with the Internet transmissions according to the facts in the present case must be delivered by using the broadcasting services bands. “Delivery” of something brings to mind the process whereby that something leaves a place and arrives at a different place. The entire process (not just the end of the process) is aptly described as the “delivery”.
The evidence of Mr DeCean made clear that, after the signals have passed through the distribution processes, the single audio stream is split. The stream that travels to the web stream servers and beyond to the consumer’s PC or Mac is not transmitted over the last part of its journey (ie the part from the distribution area to the web servers and ultimately the consumer’s computer) using the broadcasting services bands. However, the simultaneous transmission to the FM, AM or DAB+ transmitters and then to the consumer’s appropriate receiving equipment is delivered using the broadcasting services bands.
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 servers and beyond is the one service. On the facts before me, the members of CRA who stream their radio programs on the Internet do so only as part of a program package which also simultaneously transmits those programs via frequency modulated radio waves to the consumer’s FM receiver. In truth, the service is but one service being a service which combines various delivery methods or platforms and which delivers the same radio program using the broadcasting services band. It falls within the exception to the exclusion set out in the Ministerial Determination.
Therefore, in my view, the service provided by the members of CRA is a broadcasting service.
That being so, the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement.
PPCA has failed to make out its case. The proceeding must be dismissed with costs.
There will be orders accordingly.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 15 February 2012
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