Copyright and communications policy

15.23 The ALRC observed, in the Issues Paper, that reviewing the retransmission exceptions raises significant communications and competition policy questions, as well as copyright policy questions, and asked whether this Inquiry was the appropriate forum for considering these.[25]

15.24 Stakeholder opinion was divided on this. Some stakeholders felt that the central importance of communications policy issues in the design of the retransmission regime meant that the incidental copyright issues should be left to other policy-making processes.[26] ASTRA, for example, submitted that the operation of the retransmission regime would be ‘best addressed directly by Government in the context of communications and competition policy’ and observed that retransmission does not raise the type of ‘fair use’ concerns that are at the core of the Terms of Reference.[27]

15.25 Other stakeholders considered that, while retransmission has implications for communications and competition policy, there is no reason the ALRC should not consider these issues.[28]

15.26 Free TV Australia (Free TV) stated that retransmission is ‘primarily a copyright law issue’.[29] Screenrights distinguished between the issues and submitted that while ‘must carry’ (discussed below) is a communications issue, the exclusion of broadcast copyright from pt VC of the Copyright Act is a copyright issue that should be considered by the ALRC.[30]

15.27 The Terms of Reference specifically request the ALRC take into account the recommendations of the Australian Government’s Convergence Review.[31] In particular, the Convergence Review suggested, in light of its recommendation that geographically-based licences no longer be required to provide content services,[32] the retransmission provisions be reviewed as part of the ALRC Inquiry.[33]

15.28 In the light of this, and stakeholder feedback received on the operation of the retransmission exceptions, the ALRC considers that it should make proposals on retransmission issues.