Commonwealth of Australia Explanatory Memoranda

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BROADCASTING LEGISLATION AMENDMENT BILL 2007

                    2004-2005-2006-2007


THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA


              HOUSE OF REPRESENTATIVES




     BROADCASTING LEGISLATION AMENDMENT
                   BILL 2007




            EXPLANATORY MEMORANDUM




         (Circulated by authority of the Minister for
     Communications, Information Technology and the Arts,
           Senator the Honourable Helen Coonan)
          BROADCASTING LEGISLATION AMENDMENT BILL 2007


                                       OUTLINE

The Broadcasting Legislation Amendment Bill 2007 amends section 212 of the
Broadcasting Services Act 1992 (the BSA) to ensure that persons who re-transmit
content provided by National Indigenous TV Limited (NITV Ltd) for transmission by
Imparja Television on its channel 31 narrowcast service are exempted from the
regulatory requirements of the Act. The Bill also amends the statutory licence
copyright collection scheme in Part VC of the Copyright Act 1968 (the Copyright Act)
to apply it to re-transmissions of NITV Ltd program material.

In August 2005, following a review into the viability of establishing an Indigenous
television service, the Government tabled the Indigenous Television Review Report (the
Report) in Parliament. The Report outlined four options for increasing the amount of
Indigenous programming on Australian television.

In September 2005, the Government announced the $90 million Backing Indigenous
Ability package as part of the Connect Australia initiatives. This package makes $48.5
million available over four years to implement Option 3 identified in the Report.
Option 3 envisages satellite delivery of indigenous television programming and builds
upon the existing Indigenous television service transmitted on Imparja's satellite
channel 31. This is an open narrowcasting service provided under the BSA.

With funding from the Backing Indigenous Ability program, the National Indigenous
TV Limited (NITV Ltd) has recently been established to aggregate and distribute
Indigenous television content. Its primary distribution arm will be Imparja's narrowcast
service, which means that from 2007 this narrowcast service will be providing a
substantial stream of indigenous television programming on a regular basis.

As a separate initiative, the Government also made a one-off payment of $2 million in
2004-05 to provide additional television transmitters at Remote Indigenous
Broadcasting Services (RIBS) sites across remote Australia to allow for the continuous
re-transmission of Indigenous television content. To date, 147 sites have been
identified. The rollout is underway and is expected to be completed by the end of 2006.
Persons operating these services will be `self-help providers' for the purpose of section
212A of the BSA.

The regulatory regime established by the BSA creates various obligations on
broadcasters. Section 212 of the BSA specifically exempts from most legal and
regulatory obligations services that are merely unaltered re-transmissions of the signals
from a commercial, national, or community broadcaster. However, there is no similar
exemption for re-transmissions of signals from narrowcasters. This means that re-
transmission of NITV Ltd programming from its satellite distribution channel, Channel
31, will not be covered by section 212.
                                          -2-



The proposed amendments would place persons doing no more than re-transmitting
NITV Ltd program material in the same position as persons re-transmitting a national,
commercial, or community service. This means they will be:

       ·   exempt from most legal and regulatory obligations under the BSA;

       ·   in the case of self-help providers, exempt from obligations under the
           Copyright Act; and

       ·   in the case of pay TV operators, subject to the statutory licence scheme in
           Part VC of the Copyright Act which enables them to retransmit the service
           without permission from the copyright holders, but requires them to pay
           equitable remuneration to those holders.

NITV Ltd expects the first of its programming to go to air in May 2007. The proposed
amendments will need to be in place by that time to ensure that services that do no more
than re-transmit NITV Ltd programming do not contravene the regulatory requirements
of the BSA or infringe copyright in the underlying broadcast material.


                        FINANCIAL IMPACT STATEMENT

The proposed amendments to the BSA and Copyright Act are not expected to have any
financial impact on Commonwealth revenue or expenditure.
                                            -3-



                               NOTES ON CLAUSES

Clause 1 ­ Short title

Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2 ­ Commencement

Clause 2 provides that the Act will commence on the day it receives Royal Assent.

Clause 3 ­ Schedule(s)

Clause 3 is a machinery provision that explains the effect of the single Schedule to the
Bill. The Schedule contains amendments to the Broadcasting Services Act 1992 (the
BSA) and the Copyright Act 1968 (the Copyright Act).

                             Schedule 1 ­ Amendments

Broadcasting Services Act 1992
Item 1 - At the end of subsection 212(1)

Subsection 212(1) of the BSA provides that the regulatory regime established by that
Act does not apply to a service that does no more than re-transmit programs transmitted
by a national broadcasting service, a commercial broadcasting licensee or a community
broadcasting licensee within the licence area of that licence. If a service wishes to
re-transmit programs outside of that licence area, it must do so in accordance with the
Australian Communications and Media Authority's written permission.

Item 1 would insert a new paragraph (c) at the end of subsection 212(1). The effect of
new paragraph (c) would be that a service that does no more than re-transmit program
material supplied by National Indigenous TV Limited (NITV Ltd) will not be subject to
the regulatory regime of the BSA.

In addition, this amendment would ensure that services doing no more than re-
transmitting programs supplied by NITV Ltd are in the same position as services re-
transmitting a national, commercial, or community service.

Under subsections 212(2) and 212(2A), self-help providers (as defined in section 212A)
who transmit program material supplied by NITV Ltd are exempted from an action, suit
or proceedings under the Copyright Act for infringement of copyright subsisting in a
work, a sound recording, or cinematograph film.
                                            -4-




Item 2 - At the end of Subsection 212(3)

Subsection 212(3) of the BSA excludes a re-transmission by a commercial broadcasting
licensee, a community broadcasting licensee, or a national broadcaster of its own
service from the exemptions in subsection 212(1).

Any re-transmission by a broadcast licensee of its own service - for example, by the use
of a translator - is considered to be part of the delivery of the broadcasting service to its
audience and is regulated as part of the particular broadcasting service concerned.

Item 2 would add new paragraph (e) to subsection 212(3) to confirm that the licensee
who transmitted the program material supplied by NITV Ltd is excluded from the
section 212 exemptions.

Copyright Act 1968
Item 3 - Subsection 10(1) (definition of free-to-air broadcast)

Subsection 10(1) provides that a free-to-air broadcast means a broadcast delivered by a
national broadcasting service, commercial broadcasting service or community
broadcasting service within the meaning of the BSA.

Item 3 would repeal the current definition of free-to-air broadcast and replace it with a
new definition. New paragraph (a) provides that a free-to-air broadcast means a
broadcast delivered by a national broadcasting service, commercial broadcasting service
or community broadcasting service within the meaning of the BSA. The terms national
broadcasting service, commercial broadcasting service and community broadcasting
service are defined in sections 13-15 of the BSA.

New paragraph (b) provides that, a free-to-air broadcast also includes a broadcast
delivered by a broadcasting service within the meaning of the BSA that does no more
than transmit program material supplied by NITV Ltd.

This would enable providers subject to the Part VC scheme (such as pay TV providers)
to re-transmit program material supplied by NITV Ltd without the permission of the
relevant copyright holders, provided equitable remuneration is paid to those copyright
holders in accordance with Part VC.

Item 4 - Section 135C

Section 135C in Part VA of the Copyright Act concerns the copying and
communication of broadcasts by educational and other institutions.

Item 4 would insert the subsection number (1) at the beginning of the current section.
                                         -5-




Item 5 ­ At the end of section 135C

Item 5 adds new subsection (2) to section 135C. New subsection (2) provides that the
reference to free-to-air broadcast in subsection (1) does not include a reference to a
broadcast within the meaning of proposed paragraph (b) of the definition of free-to-air
broadcast in subsection 10(1). As a result of this amendment, Part VA of the Copyright
Act would be unchanged by the amendments proposed by Item 3 of this Schedule.