Like other cases covered in this newsletter, the recent decision of Justice Foster of the Federal Court in Phonographic Performance Company of Australia Ltd (PPCA) v Commercial Radio Australia Limited (CRA) [1] illustrates some of the copyright issues raised by new delivery platforms. The issue here related to the streaming of radio programs.

PPCA is the copyright collecting society representing copyright owners and recording artists in relation to the broadcast, communication to the public and public performance of recorded music in Australia. CRA is the industry body representing commercial radio broadcasters in Australia. The question for the Court’s consideration was whether the existing licensing arrangements between PPCA and CRA and its members covered the simultaneous broadcast and streaming via the Internet of radio programs. PPCA argued that the streaming was not covered and comprised a separate communication to he public. CRA argued that the simultaneous streaming of radio programs was covered by the existing agreement.

The agreement between PPCA and CRA was made shortly before the amendments which introduced the technology neutral right of “communication to the public” in to the Copyright Act 1968. Perhaps it was their awareness of the impending reforms that caused the parties to incorporate the Copyright Act definition of broadcast (as amended from time to time) into their agreement. The decision is therefore largely concerned with the meaning of “broadcast” as defined in the Copyright Act.

During the course of his judgment, Foster J observed [at paras 110-111]

‘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.’

His Honour went on to find that the simulcasting of radio programs by CRA members was one service and therefore fell within the existing licensing arrangements of the parties.

While the decision is largely confined to the particulars of the agreement between PPCA and CRA it provides an interesting examination of the meaning of “broadcast” under Australian copyright law. And for those of us less technically savvy, it also provides a useful explanation of radio broadcasting and Internet steaming. At the time of writing it is not known whether PPCA plans to appeal the decision.

[1] Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)