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Broadcasting Legislation Amendment Bill 2007

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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. 

 

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. 

 



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.  

 

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. 

 

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.