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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 —Thank you for your submission, which we have received as submission No. 5. Before I ask you to make an opening statement, are there any amendments or alterations to your submission?

Mr Smith —No, I do not have any amendments.

CHAIR —Would you like to make a brief opening statement before we go to questions?

Mr Smith —Yes, certainly. I have been spending a lot of time thinking about this particular issue, knowing that I was going to be giving evidence today. Firstly, I would like to thank you for giving me that particular opportunity.

My first view is that the right to report is fundamental to any society. News organisations, no matter whether they be online, radio or television outlets, need to be given the right to actually go about their business and to report. That is the starting point from any submission that I make here. I have this firm belief that we have to do everything we can to allow organisations to report the news. That is true of whether it be sport or any other type of news.

In recent years there has been a situation where sports administrators have become a little bit guilty of trying to control the media to an extent whereby the opportunity for the media to do its job has been impaired. I feel that is something which needs to be addressed. I also believe that some media organisations have actually pushed the boundaries a little bit too far. If you are an online rights holder and you are trying to give an overview of what has happened in an event, at times they have pushed the boundaries in the type of content that they have put on there and the extent of that content. Perhaps that needs to be addressed to ensure that it is a fair playing field for the rights holders to an event, the organisers of an event and also a news organisation.

Administrators are fighting a losing battle in what is happening with the advances of technology. It has taken away the control. Anybody who goes to a sporting event these days armed with a mobile phone can easily start producing material that is of a news nature for an online site, which they can access from that ground. Very much the control has been taken away from administrators, and that is something they have to address because that is not going to change. It is actually going to get worse.

I also believe that TV broadcast holders would make life easier for themselves if they broadcast all sport live, unless it was actually working against the gate, because a lot of the activities of online services just really would not matter too much if the events were available and accessible live, because everything thereafter becomes of a secondary nature. I also believe some restriction is acceptable in the quantity of photos and the video footage that should be allowed on online media to ensure that it does not detract from the rights holders and indeed the sport administrators.

CHAIR —You mentioned the media’s ability to report sports news has been impaired by what sport organisations are doing. Do you have any actual examples of that?

Mr Smith —Yes. There are quite a few examples in quite a few sports where they will not provide you with talking heads to talk about a sport. You are just left to report on the match action. They will not make administrators available to talk about issues that have raised themselves in the game. I do know they have put restrictions on the sort of material that you can put out. All of that works against the media in their attempts to bring sports news to the public.

CHAIR —Do you have any evidence that consumers are going to other forms of media to get, for example, the talking heads or the administrators?

Mr Smith —Once again, it is very difficult. If the administrators are not going to make themselves available and hold themselves up for scrutiny, perhaps other outlets will not have any further success than the actual news organisations have. In this day and age, with blogging and all of these other websites, a lot of misinformation goes around based on conjecture and rumour, whereas a lot of it could be halted if administrators made themselves available to the news media in the first instance. In fact, they are working against themselves by not actually making themselves available.

CHAIR —You are one of the few witnesses who has raised the issue of delayed broadcast and the imperative that puts on particularly television stations to attempt to control the broadcast of sport. You say that in the rest of the world TV companies always broadcast major sporting events live. Is that correct? Why do you think Australian television companies do not follow that model?

Mr Smith —Largely, in most other Western organisations and civilisations, the material is broadcast live because that is the way that things have been generated. There are exceptions to that. If you look to England, then on 3 o’clock on a Saturday afternoon you will not find live coverage of a soccer match in England, because that is against the gate and it just would not happen. What you do find now is that there will be a live match on pay per view at 12.30 in the afternoon and another one at 5.30 pm. There is some live action, and outside of that 3 o’clock time the games are largely broadcast live.

If you look at American football, baseball, hockey and all the major sports there, they would be broadcast live and you would find a situation where they would go to an eastern states game and then go to a western states game. One would follow after the other and it will be live.

What has happened in Australia, due obviously to the time differences that we have between the western, in particular, and the eastern states is that the west has decided largely to actually delay transmission of all sorts of programs. You can find that news bulletins are shown two to three hours after they were first broadcast in the eastern states, and in the days of 24 hour news channels on satellite, peer-to-peer viewing and blogging on all the internet sites that we have, it is an anachronism that is rather strange. Those TV companies are trying to maximise the commercial dollar that they can get for them. However, that works against the sporting public. When you know that a game is on live on the radio but you have to wait three hours for it to be broadcast on TV many people choose the option of listening to it on the radio and then will not watch it on TV. You can go to any website news organisation to find out the score. It really does work against the sporting public to have these games on delay. A lot of the time it is for no other reason than the TV companies themselves deciding that they want to try and recoup a little bit more money by putting it into a slot they feel might be more advantageous to them rather than to the sporting public.

CHAIR —Do you think that situation will change with the advent of more digital television channels?

Mr Smith —I have been watching the outfit of One so far, which is the new HD channel from 10, which has obviously sporting content as the mainstream. So far I have seen that they have been broadcasting material live. If that is the way it is going to continue, that is good and it will certainly be acknowledged that there is a change potentially happening within the media.

There is still a resistance to change and certainly we will still find ourselves in a situation come June when Wimbledon starts that we will have a two-hour time delay from the actual broadcast, but we will sit through a two-hour rain delay that was shown over in the eastern states, despite the fact that there is now live tennis available. There is a certain amount of laziness from broadcasters and a certain amount of, ‘This is the way we’ve always done it.’ I am hoping that somewhere down the line there will be a change, but so far I have not seen too much evidence of that.

Senator LUNDY —We have had a range of proposals put forward by different stakeholders through the course of this inquiry. What I would like to do is put forward these suggestions to you and get a response from you about your views of their respective merits. The first one was a proposal from AAP for what they describe as ‘a legislated provision for right of access for news media’. Optus, the Copyright Law Review Committee and the Law Council of Australia have suggested:

… 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.

That means that sports could not override that fair use principle.

The next one is a suggestion that we insert into Australian copyright law guidance as to what constitutes fair use for the purposes of reporting news to sit parallel alongside the existing guidelines for fair use for research and study. Finally, that limits be placed on the number of images and frequency of updates that can be conducted by news organisations online. I know that is a big question, but can you, off the top of your head, respond to each of those? If you would like more time I am sure that is fine as well.

Mr Smith —Some of those questions I can deal with. I believe that AAP is on the right lines in saying that there should be a right to access. Any news organisation that decided it wanted to cover an event, and thereby provide the public with information, is actually serving the public interest. That is something I would certainly believe would be to the benefit of the public.

If I can take the last one, concerning the restriction on the images, I believe there is some protection that has to be awarded to the sporting organisations and indeed the rights holders. For instance, if a news organisation wanted to put out 90 minutes of a soccer match, which is basically the whole game, then that is not really fair to the broadcaster that has paid a large sum of money to broadcast that event. Obviously there has to be some restriction imposed on them as to how much they can use.

In the past, most organisations have worked on the basis that a minute to a minute and a half would be fair usage of that material. I think that is fair enough. As far as the frequency goes, once the material has actually been broadcast, in this day and age you are not finding that broadcasters are wanting to revisit those events by putting out highlight packages or additional programming. Therefore, I believe that there should be no further restriction on how frequently you actually broadcast that material.

In terms of news programs, in the old days perhaps news organisations only had two or three news programs in a day so it did not really affect things that much when they were being broadcast. It is slightly different nowadays with 24-hour news channels, and indeed Fox Sports would probably be using this material once an hour. Again, I see no problem with that, because if you think about what happens with material these days, the rights holder has actually emblazoned into the picture their own logo so no-one is in any doubt that, for instance, it was Channel 7 that initially broadcast this event. The message does get through that to see the live action you would have had to switch to Channel 7.

There has to be a restriction on the actual amount of content they can use, and that would also extend as far as images as well. If you are going to put 200 images of an event, perhaps that is a little bit too much. If you put five or 10 images it gives a flavour of what went on without impinging too much on the rights holders or indeed the sporting organisation, which still obviously has the rights to that material.

As far as research and study, obviously I am working in a university. Anything which promotes the possibility of research and study we favour and would support. I am a little bit hazier about the second question and perhaps that could be restated.

Senator LUNDY —The second point was with respect to a very specific suggestion of an amendment, which was a provision to render of no effect any attempt for a sport to constrain a media organisation by agreement or contracts.

Mr Smith —My understanding of what we are talking here is that the sporting organisation is trying to restrict how the material is actually being used.

Senator LUNDY —Yes. They use the accreditation. One example is using accreditation to a particular event. For example, the media organisation does not get access unless they agree to terms specified by the sports body.

Mr Smith —I again would side with those who are looking for that to be restricted. I do not believe the sporting organisations have the right to turn to news organisations and dictate to them how they are going to treat material and to make them sign clauses to that effect. That, again, is working against the media organisations. That comes back to one of the earlier points that I made that some administrators are trying to control and spin, to a degree, the way that their sport is actually reflected in the media. I do not believe that it is their job to dictate to the media how the media goes about its business.

Senator LUNDY —I am looking at the limits placed on the number of images. One of the things we explored with the AFL was defining what was considered news for the purposes of a piece of video footage. A witness from the AFL during the COMPS evidence suggested that 30 seconds constituted a reasonable length of video footage for the purposes of news. What are your thoughts around the prospect of such definitions applying to the reporting of sport for the purposes of news as opposed to content that would otherwise be protected by copyright?

Mr Smith —As far as the reporting of news from a match, for instance, I think 30 seconds is too limited. You can look at the TV stations and the time scale in which they would put out a news report. I work as a part-time weekend producer for Channel 9 and we will regularly put out a one minute 50 report on a game that has been broadcast on another station. I think that is a fair amount of time to reflect fully what has gone on in a match which has lasted over two hours. I would say somewhere in the region of one minute 30 to two minutes would be a fair time to put on a news outlet as a restriction in terms of the amount of footage actually used, because otherwise it is very difficult to tell the story of what has occurred in that particular game. It would be far too restrictive to limit it to 30 seconds.

Senator LUNDY —The point was made that some sports go for five days and some go for less than an hour. It is one of those questions; if we wanted to answer that question formally then the answer could be different for different sports.

Mr Smith —I can understand where you are coming from. The fact remains that all you are doing is giving a flavour of what has occurred in that event; you are highlighting the main incidents. Even then, you are still glossing over the fullness of that event. I still do not believe that even if it is a shorter event of an hour duration that something of a minute or a minute and a half is actually impinging too much on the rights holder as to the content that has been available elsewhere.

Senator LUNDY —Thank you for that. We are at the stage of this inquiry of really just testing some of the ideas that we have heard through witnesses, so I really appreciate your ability to come back at some of those ideas in the way that you are. I will throw another one at you. One of the sports organisations raised the issue of pulling down online news content after a period of time as an example of what they would consider to be a reasonable constraint of use of that digital content. My interpretation of that was that it was analogous to the immediacy of broadcast news appearing, disappearing and being replaced with newer content. I challenged it on the basis that it was in no way analogous to newspaper content which is there in perpetuity and in fact forms part of the archive of the nation. What are your thoughts on pulling down news content after a period of time, and do you think that is in any way, shape or form reasonable?

Mr Smith —I have been nodding here. If you saw me giving evidence in person I would be nodding and smiling at you at this precise moment. I think you actually hit the nail on the head when you talked about newspapers. Once the news is published it is there for all time. If you have still got the wrappings from your fish and chips there is still a possibility that news still remains to this day.

On this issue of the way that online material is now available, I do not believe that any restriction should be placed on what has already been made available and published. Once it has been published it is there, it is for the world to see. I would hate to be in a situation where we are culling material which is denying people the chance to research, to go back over material and actually find out the truth of what a situation was. If you take an instant in a match which occurred where a player got into trouble, it may well be very important to go back two years to see what that incident was and to report more fully and accurately as to what the situation is now if that player is in trouble again. I can see so many situations where the public would not be served by pulling material away just because it has fallen outside of a certain time bracket.

I also believe that if you set up the boundaries whereby there is a restriction placed on the amount of images or video shown for it, that we have already addressed that particular issue. It is not impinging on the rights holders to issue a video of the whole match and try to sell and market that if they so wish. It is still being dealt with as news. It is still news as it was when it was first broadcast in the first issue.

Senator LUNDY —Thank you very much.

CHAIR —Senator Birmingham.

Senator BIRMINGHAM —Thank you for your time today and for your evidence, which has been quite valuable. I would like to go back to the right to access issue to start with. Entertainers control when they give interviews, to whom they give interviews and who has access to their performances. Politicians and political parties even control, or seek to control, when they give interviews or to whom they give interviews, at least when they are outside of this place. Why should sports organisations be any different?

Mr Smith —I would say that if you look at entertainers, to promote their forthcoming movie or their new production which is going to be showing in a few weeks time, it may be controlled as to what access you get to Russell Crowe or whichever film star we are talking about, but the fact is that they will build into the whole project that they are doing some form of access for the media, because it is promotion and they need promotion. Without promotion from the media then they are not going to sell their tickets and it is self-defeating if you hide away from it. Even in something like the entertainment industry they will still make themselves available to the media. Politicians as well, who may, at times, like to move away from answering questions from the media and perhaps not make yourself available, but if the issue is big enough then at some point somebody from your party is actually going to say something because that is the news cycle. The news cycle will not allow big issues to go away without someone at some point facing the cameras and actually answering the questions.

As far as sport goes, without the oxygen of publicity, sport dies. There is always a certain amount of promotion. Whether they try to spin it and try to carefully manufacture what access the media has got to personnel, the fact is that there is still a certain amount of promotion that has to go on to promote the game. Obviously there are some events that are so big that they do not need any promotion at all. Largely, the day-to-day sport, no matter what sport it is, needs to have some promotion to try to get more people to sit down in the seats in the stands.

It is very important that sporting administrators understand the responsibility that they have to their sport. I will give you an example of this. As you can tell from my voice, I am British, although I have now been over here for 10 years. There was a time in the UK where everybody knew who the British Heavyweight Boxing Champion was. It was Henry Cooper until he was beaten by Joe Bugner, who has some Australian links. Eventually what happened was that the fights that were being shown on the mainstream TV channels, BBC and ITV, were eventually taken on to the satellite arm of broadcasting and no longer shown on free to air. I can assure you now if you go down any street in Britain and stop somebody and say, ‘Who is the British Heavyweight Champion?’, they would not have a clue because it is not broadcast in the mainstream and has now become a rather minor event on satellite channels.

That is the danger that sports administrators have. Without the oxygen of publicity you will stifle your sport. It is actually within the interests of the sport to cooperate with the media and to try to get as many media outlets as possible to get the message across that this is a viable sport and an interesting sport, or else I am afraid that their particular sport may suffer as a result of that particular action.

Senator BIRMINGHAM —You absolutely mount a very good case for sports administrators to listen to for the best interests of their ongoing survival as a sport. Certainly, everyone around this table understands the importance of accessibility to the media versus spin to the media versus how any of those issues are played out, be it entertainment, politics, sport or whatever the case may be. In the end that is a commercial decision. If any one of us, as politicians, lock ourselves away and refuse to ever give an interview, then we can guarantee that we will probably never get terribly far in this game. If a sports organisation chooses to lock away its sport then that may be a foolish decision on their part, but do you think that it should be their right to make a foolish decision?

Mr Smith —That is what you are working on at the moment, as to how far regulation should go. At some point you are obviously going to make a boundary as to what you feel is something that could be legislated and what cannot. I agree with you that sports do have some say as to where they go as far as giving access to material, in this day and age certainly, and as far as who they sign up rights and agreements with. I personally think that there are some sports that have chosen to go down a path of going purely on satellite and not free to air which is detrimental to the sport, but that is their decision.

But what we are talking about here is sports news. When we are dealing with news you cannot restrict the access to online media, radio media or any other media. If you are a news organisation, you are legitimate and you are seen in the eyes as being an organisation that does report, then you should not be excluded just because you are not the rights holder or because you do not treat the material exactly the way that they actually like. I think that is a very dangerous ground to go down.

Senator BIRMINGHAM —That possibly plays into a right to access to attend matches. I would have thought that it is still some stretch to go from there to a right to access to interview players or to interview administrators or those types of things.

Mr Smith —No. Once again, you have got to look at the wider issue here. Perhaps media that are not connected to the sport, who have not got a vested interest, are actually going to be asking the important questions. They are the ones who have not got a vested interest to try to protect. It is even more important that they are given access to those press conferences so that they can ask the hard questions, because possibly those who have a vested interest will not.

Senator BIRMINGHAM —Going to rights holders and the rights of those rights holders, is an online picture gallery news?

Mr Smith —I think so. I think we have established the power of pictures to tell a news story over many decades, whether it be a war story or any other type of story. A picture really does tell a thousand words at times. Yes, a news gallery is very much news.

Senator BIRMINGHAM —Yet, my recollection from your opening statement is that you suggest that there may need to be some limitations placed around the extent to which organisations can have free-for-all of online picture galleries.

Mr Smith —Yes.

Senator BIRMINGHAM —Can you explain the point of difference there? If an online picture gallery is news then why should there be limitations on the promotion of that news?

Mr Smith —There is a boundary which you can go over whereby the amount of pictures that you are using to try to tell the story goes beyond the need of that organisation. In other words, it becomes a bit more gratuitous; they are doing it because they are great pictures and that is helping their website look very good, but it has actually gone beyond what they needed to illustrate the particular story. If the story is concerning an injury and you have got shots of the player going up for the ball, coming down, landing awkwardly, twisting the leg and you publish those half dozen pictures, you have actually illustrated the story. But when you then go on to show several more pictures from the game which are not related to that, then you are going beyond perhaps the boundaries as to what is fair for the rights holders and the sports administrators who obviously have those particular rights. I think you should be able to tell the story with a dozen pictures, but perhaps 200 pictures, which it is possible to take these days, would be going over the top. I am not sure what that figure is but I certainly believe that there is a figure where you have gone beyond the point of actually telling the story.

Senator BIRMINGHAM —You used an example there of telling a story of a player who gets injured. That suggests some context to a picture gallery. What about a picture gallery that is highlights from Adelaide v Freo, round 3?

Mr Smith —Again, you can be illustrating a story. For instance, the amount of goals that Fremantle scored and you have action pictures of players kicking towards goal. Again, that is illustrating a story. It is not a hard news story as perhaps an injury might be to a player, but it is the essence of the game. Providing that you have dealt with the essence of the game and not gone beyond that then that is fair enough for the online media, because obviously it is primarily a sports story so people doing well and scoring goals is pretty much what it is about. I think that is fair enough, providing it has not gone beyond that point.

Senator BIRMINGHAM —In terms of video footage and how that is treated, you had a discussion with Senator Lundy about what time limits might be appropriate as to the use of such video footage. Do you believe that sports organisations should have the right—for example with Cricket Australia—to have exclusive agreement with 3 mobile for live coverage in essentially an online platform with exclusive arrangements?

Mr Smith —In this particular instance obviously what they are doing is providing 3 mobile the opportunity of taking the Channel 9 TV pictures and making that available on a mobile platform. That is going to happen more and more with more sporting events. That is just going to increase. Mobile is obviously one of the areas of massive expansion. Again, we are basically talking about the broadcast rights of a game, we are not actually talking about sports news. I do not see how another platform that is putting in a one-minute report of a game is in any way impinging on the live broadcast transmissions that are happening on another mobile platform.

Senator BIRMINGHAM —Thank you.

CHAIR —Senator Wortley.

Senator WORTLEY —Thank you for your submission which is interesting, given that it comes from the point of view of not currently working in the media or for a sporting organisation, although I would take a guess that perhaps being an academic and working in journalism you have a background in media.

Mr Smith —To be absolutely honest, I have been a broadcaster for 30 years now and, although I am currently teaching and coordinating courses here at this university, I am still a practising broadcaster and that will continue hopefully till the day I die.

Senator WORTLEY —Good luck! I was interested in your comments where you suggest that it is in the interests of all sporting bodies to safeguard the interests of all media organisations to maximise the exposure of the sport. You said that they could learn from the experience of some sports in other international markets that moved coverage to non-free-to-air stations and where the interest in the sports waned as news outlets stopped covering events. You touched on boxing. Were there other examples that you could provide?

Mr Smith —Yes, there are other sports. I would say that in this country you have a situation where the Super 14 rugby competition is broadcast solely on satellite and not available free to air. We have a similar situation now with the A-League, which signed a large contract with Foxtel to have it broadcast on their platform, but without any provision for free-to-air coverage. I certainly believe that it is detrimental to any sport not to have some sort of free-to-air exposure where the masses can get hold of, even in some highlights form—an extended highlights form—the actual match coverage. Without that, people are missing out on the action; they are missing out on who the new heroes are from the sport; they are not developing a culture of watching and potentially then moving on to play that particular sport.

I do believe administrators, whilst it is very important that they make their sports profitable and viable, also have a look at the future and try to build into it some sort of access to the free-to-air outlets, like for instance, SBS when it comes to soccer. Because it is through the growth of the sport and the interest in the sport that they are going to have far better times in the future.

Senator WORTLEY —In your comments in your submission on accreditation you think it is perfectly acceptable for sporting organisations to ask media to apply for accreditation. Senator Lundy asked you a question in relation to this and you touched on it briefly. I am interested to hear a bit more on that. At the moment I have in front of me an AAP report that says:

News Limited journalists and photographers were controversially locked out by Cricket Australia of the first day of the First Test between Australia and New Zealand in 2007 after the two failed to agree on coverage terms.

What would your opinion be with regard to situations like this?

Mr Smith —The distinction that I would make in this particular case is that it is quite right to ask organisations to apply for accreditation to limit the numbers, to ensure that you have the facilities for all those that are coming and to say to each organisation only one or two people are allowed from their particular organisation. This is taking things a step further because this is saying, ‘We will only allow you in providing you do things the way that we want.’ I made the distinction earlier in the conversation that it is very important that media outlets are not allowed to dictate to news organisations the way the material is addressed, and I feel very strongly that is the case. My sympathies go with any news organisation that is told that it can only have access to an event if it applies certain criteria to the way they are reporting. That, to me, is fundamentally wrong. You cannot do that. It is exactly the same way as in any walk of life to have newspaper journalists and reporters told, ‘You can only do this’, which flies in the face of the freedoms that we have in this country.

Senator WORTLEY —Accreditation should be a right of access, but should not restrict the journalist/photographer in their role?

Mr Smith —Exactly. You have summed it up in about 10 seconds what I took about a minute and a half to say. Yes, that is basically it.

Senator WORTLEY —Thank you for your time today.

CHAIR —Thank you for your submission to this inquiry and for taking the time to appear before the committee this afternoon. We appreciate it very much.

Mr Smith —Thank you so much.

[3.06 pm]