1

Copyright was envisioned to protect the original and creative endeavours of human authorship, and to prevent others from reproducing or communicating such works without permission. To achieve this end, “a balance was conceived between exclusive control and freedom to enable future creativity”. [1] In this context, a creation is understood as either a tangible or non-tangible embodiment of subject matter in the literary and artistic domains, which is the result of significant intellectual effort by the person who undertakes its creation. [2] Generally, the creator/author of a literary, dramatic, musical, or artistic work is the owner of any copyright subsisting in the work. Over time, however, copyright protection has also been granted to subject matter other than literary, dramatic, musical, or artistic works. For instance, a production is defined as either a tangible or non-tangible embodiment, other than a creation of subject matter in the literary and artistic domains, which is the result of time, effort, and resources by the person who undertakes its production. [3] Hence, the owner of the copyright in sound recordings, films, and broadcasts will generally be the maker, producer, or broadcaster. The focus of this article is specifically on ‘broadcasts’ as the subject matter of copyright where, similarly to a production, but specifically because of the huge institutional resources required, protection is afforded as an incentive to broadcasting organisations.

2

Unlike authors’ rights, which reward authors for their creative effort by protecting their rights under the copyright law, the protection afforded to broadcasters safeguards the results of corporations’ pure investments and entrepreneurial efforts to communicate such creative works to the public. Broadcasters produce and transmit audio or video content for the benefit of the general public, which requires major financial, technical and organisational investment in infrastructure and logistics so that the public can receive programs via a “signal” or “transmission”. [4] The protection of broadcasting organisations, therefore, is not based on the creativity involved in creating such works, but on the utilitarian and economic justifications in communicating these works to the public. [5] Here, the utilitarian or social-oriented perspective is introduced as a rationale for copyright protection, which focuses on the interests of the public and society, and also embraces the technological strides in the dissemination of information and content to society. [6]

3

Consequent to the utilitarian rationale, the neighbouring right (rights neighbouring to copyright for authors) was conceptualised especially for people or entities who are not technically authors: performing artists, producers of phonograms, and those involved in radio and television broadcasting. Typically, it offered broadcasters derivative rights: existing authorial works are used or developed; the subject matter protected by such right is the product of technical and organisational skill, rather than authorial skill; and the rights are initially given to the body or person financially and organisationally responsible for the material’s production and dissemination, rather than the human creator. [7] Hence, the economic rationale for granting neighbouring rights to broadcasters is to protect the substantial investments made by broadcasting organisations for the provision of program content and the transmission of that content to the public, especially by limiting the ability of third parties to exploit the products of such investments. [8]

4

According to the World Intellectual Property Organisation (WIPO), “the neighbouring right for broadcasters thus mainly exists to protect the broadcasting organisations’ entrepreneurial effort and investment which materialize in the form of their broadcasts (or related online signals) as an end product”. [9] The emphasis on the protection of broadcasting organisations also stems from its economic contribution which is more than twice that of the music sector and more than three times that of the film industry. [10] Similarly, the former Director-General of the European Broadcasting Union (EBU) argued that:

(b)roadcasters pay billions of euros to produce or acquire and distribute the content of the highest technical quality and have paid tens of billions more to convert analog transmission systems to digital systems. Without appropriate protection of the broadcasting signal, the returns on this significant investment are under threat. [11]

5

Essentially, the EBU’s argument states that broadcasters engage in planning, producing, acquiring, scheduling, and transmitting programs for the public benefit and these acts come at a significant cost and demand the broadcasters’ financial, technical, and organisational investment. [12] The protection of the broadcast signal is thus based on the technical and organisational efforts made by the broadcaster for transmission purposes and on restricting third parties from benefiting from the broadcasters’ investments. [13]

6

It is in this background that this article attempts to highlight a key intersection between broadcasters’ rights under copyright law in Australia, the author’s copyright in their original works that are broadcasted, as well as the social-oriented rights of the public in accessing such works through broadcasts. The article argues that in introducing a new aspect of copyright protection that sources its rationale on the public interest rather than originality, there has been a consequent fragmentation of copyright law. This inherent fragmentation requires a closer analysis and engagement from the lens of the interests of the various stakeholders—the broadcasters, the wider public and original creator (wherever applicable)—while at the same time anticipating conflict between the interests of such stakeholders.

7

This article is henceforth divided into three sections. Section 1 provides the historical background on the journey of broadcasts, from radio broadcasts to television and now digital broadcasts. Section 2 focuses on copyright law in Australia, particularly dealing with the copyright protection of broadcasters, to emphasise the foundational understandings of the protection afforded therein and the dichotomy with the originality requirement for authors. This section also sheds light on the judicial conception of broadcasters’ rights in Australia which underlines such fragmentary nature of protection. Section 3 focuses on the public interest argument emphasising the evolving complexities that must be continually assessed. Finally, the article concludes that the cooperative underlying scheme among authors’ and broadcasters’ rights, as well as the social-oriented rights of the public to access works through broadcasts, need to be continually assessed and balanced in law, legal judgments, and policy decisions, particularly in light of technological advancements.

8

Before diving into the issues emerging from copyright protection of broadcasters, a brief discussion on the concept of a “broadcast”, and its historical evolution, is relevant. In the Cambridge Dictionary, the broadcast has multiple definitions, including (a) “to send out a programme on television or radio”, and/or (b) “to spread information to a lot of people”, and/or (c) “to send out sounds or pictures that are carried over distances using radio waves”. [14] Broadcasting is recognised as being a “key sector in modern society, not only economically but, more than most industries, culturally, socially and politically”; [15] it is “the quintessential electronic mass medium”. [16] As Glenn Withers identifies, “it is also a sector that is more than most linked to the digital revolution in technology at the core of the new global knowledge economy”. [17] Broadcasting is also recognised as being “arguably the most influential and powerful industry operating today. The media impose an inescapable presence in contemporary life and infuse all areas of public communication”. [18] Evidently, broadcasting encapsulates a number of services, at the heart of which lies the provision or delivery of sound and/or pictures to a viewer or listener.

9

Regarding the history of broadcasts, radio is the earliest mass broadcasting technology, with telegraphy and telephony appropriately being called the two “older sisters” of radio technology. Telegraphy involves sending coded electronic impulses over distance, whereas telephony involves sound transmissions. While these two technologies are point-to-point transmissions, from a sender to a receiver, radio technology entails “broadcast transmissions, which take place between a sender and an indefinite number of receivers”. [19] The receivers are invariably the general public, or a particular group within the public. Although the history of radio technology might seem primitive to those living in an era of high speed-internet, smartphones and 5G, at the time, these developments were nothing short of magic.

10

Further, the technological developments in broadcasting have been the brainchild of numerous outstanding inventors worldwide. Broadcasting gained prominence at the end of the 1890s when Guglielmo Marconi initiated the world’s first commercial radio service. After the technology was developed to move images as well as sounds, the concept of broadcasting was further expanded. With the end of the First World War came what Andrew Crisell refers to as the “golden age of radio” and the “rise of television”. [20] This latter improvement allowed listeners to see what they were hearing. In 1926, at Selfridge’s department store in London, British inventor John Logie Baird held world’s first public demonstration of a television system, using mechanical rotating discs to scan moving images into electrical impulses. [21] The prelude to television broadcasting began as early as 1928, when Charles Jenkins broadcasted silhouetted images under the name of “W3XK”, which was an experimental television station in Washington, DC, in the United States of America (USA). [22] In 1939, while transmitting the inaugural telecast of the opening ceremonies at the New York “World’s Fair”, the USA’s National Broadcasting Company became the first network to introduce regular television broadcasts. [23] Thus, the world entered an era of television broadcasting which took off in parallel to radio broadcasting. The global TV and radio broadcasting market was expected to grow from US$317.05 billion in 2020 to US$347.81 billion in 2021 at a compound annual growth rate of 9.7%. [24]

11

Digital television is nothing less than a revolutionary new way to broadcast television content, replacing the National Television System Committee of USA analogue standard that had been in place since 1953. [25] With the advent of the internet, most broadcasting methods instigated digital broadcasting networks, which offer channels for distributing digital content. The digital era has given viewers control over where and how they watch content, and has made it difficult to overestimate the effects of these changes in television distribution on the diverse kinds of content, production, and viewer strategies. [26] For broadcasters, the increasing prevalence of digital technologies comes with a drawback— the option available to viewers to watch a rebroadcast, i.e., a simultaneous or subsequent broadcast of an initial broadcast, thus, leading to the increased ease of obtaining unauthorised access to copyrighted content. [27] Nevertheless, the journey from radio to television and now, digital broadcasting, shows the continuing technological strides in communicating sounds and pictures to the public en masse.

12

From the standpoint of legal and policy matters, a continuing focus on the ongoing evolution of the broadcasting industry is important because communication to the public entails standards and regulations, while balancing the interests of broadcasters and the authors of the works being broadcasted. It is also relevant from the perspective of understanding the manner of regulating the broadcasting industry in the interests of society, particularly in the present digital age, while anticipating further technological strides in the years to come. It is, therefore, crucial to engage with the underlying reason for which broadcasting has been encouraged until now; that is, the delivery of content and information to the wider public in the larger interests of society, or its key social-oriented purpose and rationale.

13

In Australia, Part III of the Copyright Act 1968 (Cth) provides copyright protection for works—original literary, dramatic, musical and artistic works—, while Part IV grants exclusive rights over subject matter other than such works, including sound recordings, cinematograph works, broadcasts, and published editions. In assessing the rationale behind the protection of broadcasters’ rights under the Copyright Act, especially the separate neighbouring rights accorded to broadcasting organisations, it is necessary to begin with an analysis of the Spicer Committee Report. [28]

17

Eventually, the Copyright Act incorporated the Spicer Committee’s recommendations and included “broadcasts” as a separate subject matter for protection. Under various provisions, the Copyright Act makes a clear distinction between the creator of a work, such as a sound recording or cinematographic film, and the broadcaster of such creations. For example, it provides protection for broadcasting organisations while defining a “broadcast” as “a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act”. [37] It also recognises copyright in “television broadcasts” and “sound broadcasts”. [38] “Television broadcast” has been defined as “visual images broadcast by way of television, together with any sounds broadcast for the reception along with those images”. [39] Sound broadcasts, conversely, refer to the broadcasting of sounds that are not part of television broadcasts. [40] Thus, reading these definitional provisions together, it can be inferred that “broadcasts” for the purposes of Australia’s copyright law means the communication to the public in the form of visual images and sounds, and it is this communication that is envisaged as broadcasting and afforded protection. An extension of the discussion leads to the observation that “broadcasts” also refer to the dissemination to the public of aggregates of visual images and sounds, in the form of a cinematograph film or sound recording. [41]

18

With respect to the rights flowing from such copyright protection, the copyright that subsists in broadcasts is as follows: for images broadcast on television, the exclusive right “to make a cinematograph film of the broadcast, or a copy of such a film”; [42] for a sound broadcast and the sound of a television broadcast, the exclusive right “to make a sound recording of the broadcast or a copy of such a sound recording”; [43] and for a television broadcast or sound broadcast, the exclusive right “to re-broadcast it”. [44] On the contrary, copyright in cinematograph films, for instance, grants exclusive rights to the creator to make copies of the film, to afford the film to be seen and heard in public, and communicate the film to the public. [45] Thus, a pertinent difference emerges here—as a creator of a cinematograph film it is not incumbent to exercise the exclusive right to communicate the film to the public. As a broadcaster, however, the broadcast or communication to the public is inherent to the copyright coming into existence. In other words, for broadcasters communicating to the public is not merely an exclusive right emanating from the broadcast, it is an essential prerequisite to the existence of copyright protection that grants exclusive rights.

19

In addition, an infringement in relation to a television or sound broadcast may occur when a copy of a cinematograph film of the broadcast or a record embodying a sound recording of the broadcast is produced. [46] Whereas, in relation to the film or recording itself, the infringement may occur simply when these are copied or recorded. [47] Finally, even when broadcasts are assessed from the perspective of the copyright owner, the maker of the broadcasts (broadcast of the cinematograph film, for instance) is regarded as the owner of the copyright; [48] whereas, in relation to a cinematograph film itself, the maker of the film owns the copyright. [49] Sections 22 (3) (b), 22 (4) (b), and 22 (5) of the Copyright Act define how the “maker” is identified in terms of sound recordings, cinematographic films, broadcasts, and other communications, respectively. In relation to a sound recording or cinematograph film, reference is made to the “maker”, who must be a qualified person at the time the recording or film is made. [50]

20

From a theoretical perspective, the difference emanating from the above provisions lies between a natural law theory providing inherent rights to creators vis-à-vis a utilitarian justification, which protects broadcasting organisations that function to disseminate creative original works to the wider public. [51] Copyright protects all creations of the human mind and intellect, whatever their form or merit and regardless of the audience for which they are destined. [52] Copyright law has traditionally been the primary source of legal protection for original works, based on the requirement of originality. [53] The notion of originality is a requirement for copyright protection but does not extend to broadcast signals and transmissions. This is because broadcasters do not necessarily produce original works but distribute the information embodied in the created works. [54] Broadcasters, such as producers, serve a strictly technical role in copyright exploitation and do not necessarily add value in any artistic or creative capacity. [55] This lack of qualifying criteria relates to the fact that broadcasting is primarily a technical rather than creative or innovative act; [56] and hence, entrepreneurial rights have no requirement for originality. It is argued that:

while this notion of ‘originality as a fundamental aspect of eligibility criteria’ is central to general copyright law, it appears not to extend to broadcast signals as unique subject matter. This is because…. Broadcasting organisations enjoy protection of their broadcasts by virtue of the mere technical act of transmission, without any application of de facto eligibility criteria. The result is therefore that there is no form of filter akin to an originality threshold or idea-expression dichotomy that prevents some broadcasts from being protected pursuant to balancing the goals of the intellectual property system. As such, it appears that broadcasters’ rights hold a very unique place in the overall intellectual property landscape, as it is perhaps the only form of right in which there is no explicit and coherent application of the doctrine of functionality. [57]

21

The unique place enjoyed by broadcasters thus emerges from the social-oriented rationale that has often been referred to as the incentive theory. Proponents of the incentive theory aim “to encourage creative activities and by doing so, to disseminate cultural and economic benefit to the general public other than creators”. [58] The emphasis is thus on the public or society, in conjunction with the protection afforded to creators or authors—while recognising the entrepreneurial and resource contribution involved in broadcasting.

22

In furtherance of this point, the regulatory scheme on broadcasting in Australia itself points to the importance of dissemination to the public of creative works and information in various visual and sound forms. Earlier, it was noted that the definition under the Copyright Act directs to that of a “broadcasting service” under the Broadcasting Services Act 1992 (Cth) (Broadcasting Act). [59] According to the Broadcasting Act, “broadcasting service” refers to “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”. [60] The Broadcasting Act also recognises various categories of broadcasters that signify the scale of resources associated with broadcasting. [61] Moreover, the Broadcasting Act provides for the distribution of broadcasting bands as well as licensing that form the basis of the regulatory scheme applicable to broadcasting in Australia. [62] Thus, the legal landscape recognises that broadcasting involves the delivery of content through a resourceful structure and an elaborate technological system established and facilitated by broadcasters.

33

It is pertinent to note that discussions on enhancing the protection for broadcasters due to technological advancements have often invoked the public interest argument. For instance, the Copyright Amendment (Digital Agenda) Act 2000 was introduced to extend broadcasting rights to cable transmission and online access to broadcasts. Within this Act, it is stated that the objective (among other things) is “promoting the creation of copyright material and the exploitation of new online technologies by allowing financial rewards for creators and investors”. [78] The importance of encouraging broadcasters as investors was also mentioned in the Copyright Amendment (Digital Agenda) Bill 1999. [79] When the Digital Agenda Act 2000 was implemented, it was based on the recommendations of the Copyright Convergence Group (CCG) appointed by the Minister for Justice in 1993. A careful analysis of the CCG’s recommendations reveals that the CCG attempted to address the acts in which new technologies enable the material to be used, particularly electronic forms. While recommending new laws, including laws relating to broadcasts, the CCG has emphasised the “urgent need to provide a copyright framework to support investment in new Australian audio-visual enterprises that requires immediate and specific legislative change” (author’s emphasis). [80] 

34

Similarly, in January 2004, Phillips Fox (now absorbed by global law firm DLA Piper) released a report titled ‘Digital Agenda Review: Report and Recommendations’. According to it, the objectives of the amendment of 2000 were “to ensure the efficient operation of copyright industries in the online environment through promoting financial rewards for creators and investors, providing a practical enforcement regime, and providing access to copyright material online” (author’s emphasis). [81] Alex Malik’s submission to the Digital Agenda report stated that “rights owners have the right to offer their products in the way in which they believe will maximise the return on their investment…” and further, “if IP rights holders are forced to offer their product in an alternate format for a lower return, the incentive for further investment and innovation would decrease to the detriment of the community at large”. [82]

35

In recent times, the discussion on enlarging protection for broadcasters has continued. In their 2016 submission to the Productivity Commission, FreeTV Australia stated that to encourage investment and innovation in Australia’s creative sectors, it is critical that Australia’s IP system:

36

Essentially, these submissions encouraging incentives to broadcasters, through the protection of the rights associated with the copyright on broadcasts, are based on the importance of communicating creative works to the public. It is an acknowledgment that such dissemination requires dedicated protection with a view to attaining certain social ends. [84] The underlying social-oriented rationale is thus at the centre of protective arguments for broadcasters; however, recent issues of content dissemination on the internet and retransmission have posed significant challenges to this justificatory framing.

37

In 2013, the Australian Law Reform Commission (ALRC) presented a comprehensive report on Copyright and the Digital Economy (ALRC Report). [85] This report addressed the emerging challenges for the broadcasting industry in the digital era, in which media and communication policies were seen to be converging. The ALRC noted the challenges faced by the industry with the emergence of content dissemination on the internet. Referring to a 2012 report by the Australian Communication and Media Authority, the ALRC Report highlights the inherent distinctions between traditional broadcasting and emerging technologies, including the internet:

digitisation of content, as well as standards and technologies for the carriage and display of digital content, are blurring the traditional distinctions between broadcasting and other media across all elements of the supply chain, for content generation, aggregation, distribution and audiences. [86]

38

Consequently, the ALRC has suggested that the Australian Government should consider whether certain exceptions to broadcasters’ protection under the Copyright Act must be repealed or amended, particularly under section 45 (broadcast of extracts of works), sections 47, 70 and 107 (reproduction of broadcasting), sections 65 and 67 (incidental broadcast of artistic works), section 199 (reception of broadcasts), section 47A (sound broadcasting by holders of a print disability radio license), and part VA (copying of broadcasts by educational institutions). [87] It must be noted that the ALRC was not concerned with any perceived clash between broadcasters’ protection versus that afforded to original creators. It was effectively concerned with protecting the balance between the original creators’ rights, and the broadcasters’ rights in a digital era, which facilitated piracy in several forms. However, from a different perspective, it is essentially a clash between broadcasters’ rights and the right of the public to access content on the internet in an easier, more affordable, and more convenient manner.

39

A related issue impinging on further protection for broadcasters in the digital age is the issue of retransmission. The ALRC report does not comprehensively address this aspect, partly due to an earlier report of the Australian Government’s Convergence Review 2012. The Convergence Review had recommended a major overhaul in the current system of licensing of broadcasters and had suggested removing it altogether and replacing it with the regulation of “content service enterprises”. [88] The ALRC noted that this may require “significant rewriting, and perhaps rethinking of Australian copyright law. Links with the Broadcasting Services Act would need to be removed from the Copyright Act and decisions made about extending copyright protection and exceptions beyond licensed broadcasters, for example, to all ‘content service enterprises’ otherwise subject to communications and media regulation”.  [89] In light of this, the ALRC noted that:

(t)he retransmission scheme raises significant communications and competition policy questions. These should not necessarily be determined by decisions made about copyright law, but in the context of a more comprehensive review of issues at the intersection of copyright and broadcasting – including in relation to the concept of a broadcast as protected subject matter, as an exclusive right and in exceptions. [90]

40

Kimberlee Weatherall sheds important light on the challenge of retransmission for broadcasters. Referring to the issue of whether the contentious future WIPO Treaty on the Protection of Broadcasting Organizations was sufficient or desirable in respect of the predicaments of the broadcasting industry, Weatherall notes that the issue of retransmission, also noted in the submission of FreeTV discussed earlier, was set to be an impediment in ascertaining the future course of copyright protection for broadcasts. [91] Interestingly, her analysis points to the critique of giving into the demands from broadcasters to disallow retransmission of broadcasts, which have been put forth by NGOs on public interest grounds. [92] Thus, whereas the role of broadcasters was envisaged as being geared towards the social-oriented purpose and thus eligible for protection, their demands today, especially relating to designating retransmission as infringement, are being opposed on the same grounds. [93]

41

In order to understand this dichotomy better, Weatherall suggests that broadcast policy must be a key determining factor. What should be paramount is how flexible it is to mould broadcast policy for the State after considering the huge technological strides that might be in store. Weatherall suggests that before taking any legislative steps, this aspect of broadcast policy must be considered because regulation would be an important part of the protection of broadcasters’ copyright due to the socio-public interests involved. [94] The situation that is envisaged here, and is, in fact, coming into the picture, is a critical engagement with the social-oriented public interest. This is a welcome aspect in the future that will determine that the technological strides in broadcasting and the consequent protection continue to adhere to its original rationale, i.e., the availability of content to the wider public.

42

The costs involved in making broadcasts are high. It is argued, therefore, that broadcasters’ rights under copyright law are the acknowledgment of the social importance of their work and the financial compensation they are owed. The neighbouring rights which have been specifically introduced to provide protection to subject matters other than original works are a treasure for broadcasters to deal with unauthorised use and distribution of their broadcast signals because, should this right not be available, they would bear substantial losses and be unable to recoup their investments.

43

Considering this critical reason for granting copyright protection to broadcasters that arise out of the foundational rationale of social-oriented rights of the public to access information and original works, it is nevertheless pertinent to acknowledge the tremendous technological developments that keep the broadcasting sector on its toes. Moreover, while the focus of legislators, judges and policymakers has been on the potential conflict of interests between original creators and broadcasters, there is also an emerging conflict between broadcasters and the public through ‘infringement’ of broadcasters’ copyright. The recent debates in Australia on retransmission and on enhanced protections for broadcasters have brought the spotlight back on such clashes. Whether such conflicts can be resolved through a focus on the inherent fragmentation within the copyright law—between the protection offered to original creators and broadcasters—will largely depend on the enhanced recognition and engagement with the underlying social-oriented purpose of granting special copyright protection to broadcasters.

44

This article has, therefore, argued that policymakers and judges will, in relation to the copyright law in Australia, need to strike a fair balance between the interests of original creators and broadcasters to reconcile the interests of both, and must, in parallel, critically engage with the right of the public to access the original content. Technological challenges will continue with further developments impacting all stakeholders, which will require a persistent (re)engagement with copyright laws, principles, and the underlying rationales.

*by Kanchana Kariyawasam, Associate Professor, Griffith Business School, Griffith University, Queensland, Australia and Anubhav Dutt Tiwari, PhD Candidate, Faculty of Law, Monash University, Victoria, Australia