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STANDING COMMITTEE ON ENVIRONMENT, COMMUNICATIONS AND THE ARTS
15/04/2009
Reporting of sports news and the emergence of digital media

CHAIR (Senator McEwen) —This morning we have Senators Wortley, Lundy, Birmingham and myself. I will start by reading an opening statement. After that I will invite you to make an opening statement and then we will go to questions from senators. Thank you for making yourselves available.

I declare open this public hearing of the Senate Standing Committee on Environment, Communications and the Arts in relation to its inquiry into the reporting of sports news and the emergence of digital media. The committee’s proceedings today will follow the program as circulated. These are public proceedings. The committee may also agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. However, while these proceedings are protected by Australian parliamentary privilege this protection may extend only to evidence given within Australia. The committee and witnesses should be aware of the limitations of this protection.

It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee. If a witness objects to answering a question the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time. A witness called to answer a question for the first time should state their full name and the capacity in which they appear, and witnesses should speak clearly and into the microphones to assist Hansard to record proceedings. Mobile phones should be switched off.

With those formalities over I again welcome everybody here today to our first hearing of this inquiry. Would either of you like to make an opening statement?

Mr Moger —Yes. I would like to make the opening statement on behalf of News Media Coalition. Thank you for this opportunity to speak with you this morning and to supplement comments made in the News Media Coalition submission. For me, although I have been involved with these issues for many years, the debate about Australian sport was initiated by various media concerns nearly two years ago. I have stood on the same stage as James Sutherland, the Chief Executive Officer of Cricket Australia, when we addressed a conference of the Australian newspaper industry. I have raised concerns that some sports in Australia were in danger of pushing so hard in asserting their so-called media rights that the previously symbiotic relationship with the media was at risk of becoming a dysfunctional one. A few months later Cricket Australia introduced an accreditation clause which claims that everything created at an event location, be it text, pictures or data, belongs to Cricket Australia regardless of who created it. Cricket Australia had the good grace to admit, after protracted wrangling, that they had been wrong to introduce a clause which claimed ownership of material belonging to media organisations.

I invite you today to consider where we would be if the news media industry had not, over time, been willing to foster a maturing relationship with sport at the same time as being increasingly vigilant against the excessive prohibitions of some. Now we hear in echoes of repressive regimes that some sports want to ration the public’s access via the independent media to one illustrative story per game and that one can only refer back to the visual news within a pre-determined period unless it is made available by the event itself. Such assertions, as well as being inherently unreasonable are, in our view, an attempt here today to negotiate the terms of public curiosity and predetermine what the media can report now and in the future rather than an attempt to fully embrace this process.

Some submissions urged the government to enshrine sports idealised contractual terms into the law. At one level these are complex issues, but at another level the issues are straightforward. Event organisations, such as some of those operating in Australia, wish to rewrite the history and the future of the news media. They wish to deny the newspapers who have always produced the news as fast as available technology would permit to pretend that the age-old network of news distribution through newsagency and newspaper syndication, not to mention the internet, when newspapers have been available for 15 years or more, is a recent construct. They want to ignore the realities that newspapers have, for generations, made their archives of yesterday’s news available to others today, those archives forming the first port of call for researchers seeking the very real first draft of history which newspapers produce daily and permanently. Instead, they wish to introduce artificial barriers to general news consumption. They claim ownership over content which is not theirs, or at best seek to mix ownership of their own material with that of the news media which they want to control. They seem to be prepared to set aside that symbiotic relationship and ignore the enormous benefits that they, their fans and society at large gets, not just from the coverage we give their sponsors and their players, but also the huge contribution the media makes to driving the popularity of the collective imagination.

The news media exists to witness events and report on them on behalf of the public. Judging, creating and distributing news is what we have done for generations. Now that some event organisations have entered the world of publishing they seem to have realised, with a start, that news operations are burdensome, expensive and often influenced by the vicissitudes of everyday life. Their solution seems to be one of exclusivity and prohibition. We believe that position should be firmly rejected. It is contrary to the reality of the modern mass media environment, it is against the interests of plurality of consumer choice and it is against the idea of a free press which can report freely on events and matters of interest to the public. This is a principle which matters immensely to sport and even more so to wider events of public interest.

Sports are well protected by existing intellectual property laws which were written to balance competing interests. The media, whose entire industry depends on the creation and protection of intellectual property, also exists within this well balanced regime and we believe that, by and large, it does its job well for IP owners and users.

We believe that the relationship between sports and the media should be determined with a strong respect for the law, for the mutuality of the relationship and with respect for each other’s commercial and editorial freedoms. It has been shown on numerous occasions that this balance can be struck uncontroversially and amicably. We do not believe that the unrealistic ambitions of the minority of sports should be allowed to determine the course of events for others, far less the law. They should, of course, be able to pursue their commercial interests and make the greatest possible success of their sports, but we do not believe that a free press is incompatible with this goal. To the contrary, we believe it contributes hugely to it. Thank you. That is the end of the opening statement from the News Media Coalition.

CHAIR —Thank you. Mr Young, I take it you do not have anything to add at this stage?

Mr D Young —No. I contributed to that opening statement and I am ready to take questions.

CHAIR —Thank you. Mr Moger, you were particularly critical of Cricket Australia in your opening statement. Is it not the fact that other comparable sporting organisations throughout the world are doing similar sorts of things? For example, Wimbledon, major league baseball in the USA and rugby league cup also impose conditions on the reporting of their sports.

Mr Moger —Yes. We are not singling Cricket Australia out for any particular reason other than the location of this hearing and the level and degree of engagement with Cricket Australia. We do believe that they have offered up the greatest challenges in recent years and we think it is appropriate that we should at least give them due regard in that respect.

CHAIR —Would you like to make a comment on the fact that many media organisations, for example in Australia with Fairfax and 3 Mobile, have actually set up their own websites that have sports content on them, presumably in an attempt to make money out of that? How does that sit with your comments?

Mr Young —If it is an assertion that it is unreasonable for the media to make money from their activities, but it has been true since the birth of the media that there have been specialist publications within specialist sports newspapers in many countries for many years, long before the internet. The reasonableness of that would have to be determined in relation to the specific case and whether or not the intellectual property that they are using belongs to them or the sport in question. If it is the sport then the sport has to have recourse in law if their intellectual property is being abused. Generally speaking, sports websites exist very much to feed the public interest in sport and to drive it as well. In my view, it is reasonable for the media to focus on matters that are of interest to their readership.

CHAIR —Do you think there is any difference between syndicated news organisations and media organisations like Fairfax? Should they be treated any differently?

Mr D Young —Syndicated news organisations, such as the major international agencies, effectively provide the source material on some occasions direct to the media around the world. For instance, media outside Australia who still wish to cover Australian sports cannot necessarily always afford to send their own representatives and will take advantage of some of the coverage provided by agencies. I guess the difference is that agencies, specifically, are not addressing their product directly to the end-user, they are addressing it via publications to the end-user.

CHAIR —I will go now to some questions from Senator Lundy.

Senator LUNDY —Under our copyright law we already have a description, if you like, of what constitutes fair use for research and study. What relevance does that law have for fair use when it comes to reporting news?

Mr D Young —It is important to draw a distinction between the fair use in the Copyright Act—I am not intimate with the Australian copyright law, but I think it is reasonably similar to the British one—in that fair use is at the right of non-copyright owners to use the copyright material that belongs to somebody else in certain limited circumstances without explicitly obtaining permission. Values have no relevance whatsoever when it comes to the media using their own content, the words written by their journalists and the pictures taken by their photographers, because the intellectual property in that content belongs to the media. There is no use because it is not fair for them to make of that under copyright law.

Senator LUNDY —In essence, just to get this right, to apply the fair use definitions to sports news, the implication is that the copyright is held by the sports organisation and it is the media companies accessing fair use. Is that why you do not believe it is the right approach in this circumstance?

Mr D Young —Fair use can apply, for instance, with the use of television broadcast material which clearly belongs to the broadcaster, the sport or whoever, and in certain circumstances can be used without permission. For instance, it is used in news reporting on other television channels. That is an issue about using copyright material which is not yours but which the law has determined, in certain circumstances, that it is reasonable for you to make fair use of. Its fair use would have no relevance to the copyright owner’s exploitation of their own content.

Senator LUNDY —The committee has heard a proposal from AAP for a legislated provision for the right of access for news media. Do you have a specific view on this, and are there any examples where such a right has been legislated elsewhere?

Mr Moger —We would sympathise with the calls from AAP for a legislated provision for the right of access. AAP have felt sorely discriminated against in many sporting environments. I do not know of other environments in which there is such a legislated situation and I think the best recourse would be to fully exploit this hearing session and other dialogue to see what resolution can be achieved.

Mr D Young —I can add to that. To my knowledge I do not believe that this is something that is typically enshrined in legislation because there has never been any dispute in the past about the need for news media to be able to report on events, and in some cases they can report on events without being there if they have seen coverage of it elsewhere. Generally speaking, it has been the case that the media has, by general consensus, been granted permission to access events of all kinds, not just sports or entertainment events, but also political and other public events of interest, in order to carry out their duties. That right is recognised by the police and various other authorities. It is not an absolute right and it does not mean that the media has an absolute right to access everything, but the right of the public to have access to independent reporting is one that is generally acknowledged. If it no longer is then it probably should be considered in legislation.

Senator LUNDY —At various times in Australia the Law Council and the Copyright Law Review Committee have supported what they have described as:

… an amendment to the legislative framework to render of no effect any provision of an agreement or contract that would exclude or modify the terms of fair dealing rights as they relate to news reporting, criticism and review.

Given that has been suggested in the public debate around these issues, do you have a view on it or are you able to respond to that view as put forward by those bodies?

Mr Moger —Just for clarity, are you saying that the proposal is that the fair dealing right should be an absolute right and it cannot be contractually distributed any further?

Senator LUNDY —That is right. It renders ineffective any effort to exclude or modify the terms of fair dealing as they relate to news reporting.

Mr Moger —The purpose of fair dealing is to allow what is judged and has been judged by various legislative bodies around the world a reasonable access to independent news reporting by the public. Part of the reason for fair dealing provisions existing in the law is to prevent the suppression of free reporting of events. To that extent, the reason that it is in the law is to ensure that it is possible for it to happen. I have not had time to prepare a considered response, so I do not think that I have an opinion on whether or not that should be reflected in an alteration to the legislation, but it seems to be apparent that on the whole the legislation works reasonably well. I am sure you have submissions from others who are closer to the absolute detail of how it works in Australia.

Senator LUNDY —How are governments generally responding to new forms of media, whether it is mobile, digital or internet content? What is your view about the capacity of governments to respond to the new digital environment generally, and then if you can answer that more specifically in relation to news media? Also, going back to my earlier question, are you aware of any specific initiative on behalf of the government to protect the right to report news?

Mr D Young —In the case of the government’s response to new media in general, the advent of new media always throws up challenges. Sometimes it is the case that given a little bit of time those challenges would resolve. There can be some things that appear very new, such as mobile, for instance, that appear very distinct and different from other forms of new media, that after a short time really become part of the general landscape. The difference is mainly because of their newness and not because of the fact that, in the longer term, they have any real distinguishing factors. Anybody who has a Blackberry or a Windows mobile device will know that you can access virtually any internet sites using those devices. The fact that it is mobile is really incidental to the site; it is just another way of accessing it. I believe that, in some cases, we have seen difficulties brought by legislation that has been introduced at an early stage in the gestation of the new medium which has proved less fit for purpose as that medium has matured than perhaps would have been the case if it had either been legislated later or had been legislated intuitively.

In some cases where the internet throws up challenges it is a challenge for the internet to resolve. For instance, where the issues about copyright generally on the internet are concerned, the mechanisms within copyright law are adequate to address the challenges of copyright on the internet. The mechanisms of the internet are not yet up to the task, and that is a challenge for industry as much as legislators.

Senator LUNDY —Given how sport earns revenue, do you have any comment on the structure of the media industry, particularly when you have a content provider also occupying a carrier space—in essence, an integrated content and carrier—and how that impacts on sports securing income or revenues from such companies who have interests across both the medium and the content?

Mr D Young —Could you give an example of what sort of company you mean?

Senator LUNDY —Telstra is a good example of a carrier that also provides for content in a mobile environment in Australia. We will have an opportunity to explore some of those relationships later.

Mr D Young —It has always been the case and it still is the case that sports can and do reach arrangements around certain content that are exclusive and carry a certain commercial price. For instance, television coverage, the right to have access to the pictures generated by dozens of cameras around the ground, is generally exclusive to a particular broadcaster. I do not think that it is the case that in order to create such opportunities it is necessary to prevent anybody else having any coverage of that sport whatsoever, or restricting that coverage so severely that, for instance, the newspapers are unable to offer their coverage in all their different editions. You could read a news report about something that happened yesterday, but not a report about the sporting event. There are always opportunities for sports to exploit the exclusive nature of certain aspects of coverage and also of the official endorsement that they can bring to their partners. I do not think anybody objects to that when it happens. I think everything supports the idea that sports can and should develop new commercial revenue streams and opportunities. What we would dispute is that in order to do that they need to prevent anybody else carrying on their public, as well as commercial, activities of informing the public of what has happened but also contributing absolutely immense value to the publicity around the sport which drives the popularity in the first place.

Senator LUNDY —Thank you.

CHAIR —Senator Birmingham.

Senator BIRMINGHAM —Thank you for your time. I have a couple of quick questions. What would you define as reasonable media rights for sporting organisations?

Mr Moger —As Mr Young has described, those that fully exploit the potential around the live game spectacle and their ability to derive revenue from their association with the content that is created at that moment. We are concerned about is the broad-brush description of media rights which started off as being something that came out of the broadcast licensing regime and now is percolating across other content forms.

Mr D Young —I can add to that. I suppose a good starting point is to look at who owns the content that is being exploited. Typically, sports own the TV coverage that is created, that is the actual output from the cameras, and they exploit that with TV broadcasters and on the internet by selling rights to that footage and/or mobile phones and so on. It is their intellectual property and they can do whatever they like with it. That is the starting point. By contrast, the coverage that we create is our intellectual property and, although we have never sought to fully exploit our rights under copyright in terms of commercial exploitation, we should be able to do whatever we want with that. There are also opportunities for them to create access that is not necessarily available to the rest of the media, access to players and other closed events, which they do, and they benefit hugely from doing that.

Senator BIRMINGHAM —In terms of the IP that you argue that media organisations, individual journalists or photographers create, what restrictions do you think are reasonable on the onward sale or use of that IP?

Mr D Young —You could take the view that under the law there are already restrictions about what you can do. For instance, if you are inviting your client who is buying your IP to exploit it in a way that infringes the trademarks of a sport, then the sports would have a legal case against whoever was abusing their trademarks. You could say that any legal exploitation is reasonable. That is the reason why the law has been created and the balance of the law between copyrights and trademarks is exactly to balance the interests of the intellectual property owners versus those who would seek to exploit the intellectual property. In reality, the important exploitation that we would seek to defend and always have freedom is editorial exploitation, and that is defined as the exploitation within editorial products.

Senator BIRMINGHAM —I have a fairly general question. Why should sports that are conducted in an environment that is on private property and in a confined space be regulated by government in terms of the access they have to provide to media outlets, or indeed anybody else who may wish to enter that space?

Mr D Young —That is returning back to the question about whether there should be an absolute right of the media to have access to events. As we said, that is not something that is typically enshrined in law but it is, by common consent, something which the media has, usually because the media provides a benefit back to whoever organised the event in return for that access, which is publicity, coverage and a huge amount of occupation of media space that would be incredibly expensive to buy. There is also the public good that is served by having a media which is free to freely cover events.

The question that you have asked us is should you legislate, and I hope you ask other people too. My answer would be that I hope that it would never be something that you had to do because the existing symbiotic status quo is one that we should fight to preserve, because it provides a balance and works well in the interests of the public, as well as the media and event organisers.

Senator BIRMINGHAM —Thank you.

CHAIR —Senator Wortley.

Senator WORTLEY —Thank you for the submission from your organisation. I have read through it and note where you state:

The News Media Coalition was formed largely to provide the forum for such discussions and promote “best practice” in the relationship between sports and the media.

You also go on to say that event organisations have:

… threatened existing relationships between sport and the news media whilst undermining the evolving flow of news to the public.

Can you briefly explain any stand-off situations between sports organisations and the media?

Mr Moger —I beg your pardon, can you ask that question one more time as the line was not good?

Senator WORTLEY —Can you provide information or examples of where problems have evolved from a stand-off between sporting organisations and media organisations?

Mr Moger —Yes, indeed. There was sadly a public debate around the World Cup in 1996 staged in Germany. At that point FIFA, when it was contemplating its accreditation terms, had certain restrictions on the updating of websites, by volume and time. That was satisfactorily resolved and we moved towards a different relationship with FIFA. A member of the News Media Coalition board has a seat on FIFA’s press commission and that allows for a very useful dialogue within the consideration of ongoing media terms.

There are many examples that I could give of background discussions, which are not quite everyday, but routinely result in an amicable solution being reached. The News Media Coalition is consistent in wanting to ensure that its legitimate news delivery operations are sustained within the accreditation formula and also ensuring that we can continue to deliver that news into the future. Most broadminded sports organisations recognise the balance which can be achieved through sensible dialogue. I believe that you have a submission from the International Olympic Committee which gives a good template for recognition of the job that the news media does through its text and its pictures on all platforms.

Senator WORTLEY —comps have claimed that the distinction between sports news comment and commercial sports content is becoming increasingly blurred in the new digital media environment. Can you comment on that?

Mr D Young —It depends on how you define ‘commercial’. I noticed in one submission that their belief was that any content that is charged for is commercial and that if the media do charge for content then they should be prevented from doing so. It is a matter of perspectives. In arguing editorial product is one in which the content is the product that is edited by editors and it is there to primarily serve the interest of readers, you can debate individual cases, but it really depends on what is viewed as being commercial. If it is the media also being a business and seeking to make money from their business, then I would disagree that that is being objectionably commercial, that is just in the nature of being in business.

Senator WORTLEY —Would you agree that there is a distinct difference between what is classed as news and what is classed as an editorial product?

Mr D Young —Some people have tried to define news by saying that it is something that only exists for a short time after an event. I suppose, in some ways, when you are talking about newspapers that the whole of the newspaper is news in the sense that most of the consumption of a given piece of content happens very quickly after it is created. The fact that a piece of content remains available on a website for a long time does not mean that it is exploited anything like the same amount after its initial publication, because the interest of the public is topical. Equally, newspapers have always provided access to an archive for those who want it. You could define it in terms of time scale, but an editorial product is one in which the product is made up of content. The content is the product, as opposed to supporting some other product.

Senator WORTLEY —There are a number of claims that there need to be changes made to accommodate new media. What is your organisation’s position in that respect?

Mr Moger —What do you have in mind in particular? That is quite a broad invitation.

Senator WORTLEY —In relation to legislation or regulations regarding the use of news or editorial product and in particular in relation to new media.

Mr D Young —All media is new when it is first created. I would reverse the question and ask what it is about new media that is different that requires special treatment, other than the fact that it is new? In general, as far as the news media is concerned, new media is just another way of bringing their information to their readers or their consumers. TV and radio were new media at one stage and have now developed into a mature space. The internet was new media at one time, but that was nearly two decades ago now and has matured hugely. Mobile is not really new anymore. The question is not so much about the medium, it is about the products. If the product is an editorial product then I do not see why the medium through which it is brought to readers really makes any difference.

Senator WORTLEY —Do you think that there need to be changes or do you think that the current situation is satisfactory?

Mr Moger —I do not believe that the relationship between sport and media, and the contracts that define that relationship, is working entirely to everyone’s satisfaction. That is evident from the staging of this welcomed hearing. Changes need to be worked through on the basis of platform neutrality and respect for each other’s intellectual property. Beyond that there is a need for all parties to embrace what is the new reality. These are exciting times and we all have great opportunities to move with those times.

Senator WORTLEY —Thank you.

CHAIR —That is the conclusion of our questions. I thank the representatives of News Media Coalition. We appreciate your submission and for taking the time to appear before the committee this morning.

[9.52 am]