February 2014 – Australian commercial radio broadcasters switched off their broadcasting internet simulcasts. This was in response to a Federal Court Appeal backing the Phonographic Performance Company of Australia and a failed attempt to appeal to the High Court by Commercial Radio Australia.
This case calls into the question the value of a broadcasting licence in the internet age where platform is becoming increasingly irrelevant from a consumer perspective. Consumers want content wherever they are or whatever they are using. There may be a case to keep the licence for regulatory reasons such as media ownership dominance or balance but free it from the shackles of the delivery mechanics. The CRA position supported this idea, but the politics and law will need to catch up.
Commercial radio broadcasters are now no longer able to simulcast an internet stream of their licensed radio broadcast output unless they pay an additional and uncapped fee which is yet to be negotiated.
Outside the statutory 1% cap the sky’s the limit for what the PPCA may ask for the use of its master records under licence. The stations responded to the ruling by switching off internet streaming for music in February 2014.
In February 2013, the Federal Court in Australia examined the question about what a broadcasting service constituted. Commercial Radio Australia lost its argument that internet was included within its broadcasting licence service. The CRA said that the service was platform agnostic, meaning that so long as it was not breaching any licence conditions it was permitted to simulcast on the internet.
The PPCA said that the service and the delivery mechanism, in this case radio spectrum, were inseparable and that the internet fell outside this bundled licence permission. The broadcasters could only use their members’ works via the licensed radio spectrum.
The Federal Court agreed with the PPCA and the CRA’s appeal to the High Court was not allowed when the High Court ruled that any appeal “would enjoy insufficient projects of success.” The result is that until the PPCA and CRA can agree an acceptable rate for internet simulcast the streams will stay off. The battle to set the rate continues between all concerned at the Copyright Tribunal.
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