2022-2023

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

COPYRIGHT LEGISLATION AMENDMENT (FAIR PAY FOR RADIO PLAY) BILL 2023

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator David Pocock)

 

 

COPYRIGHT LEGISLATION AMENDMENT (FAIR PAY FOR RADIO PLAY) BILL 2023

 

OUTLINE

 

The Copyright Legislation Amendment (Fair Pay for Radio Play) Bill 2023 will amend the Copyright Act 1968 to remove provisions that prevent radio broadcasters from paying more than one per cent of their gross earnings in licence fees for the broadcast of sound recordings.

 

The Bill also removes provisions that provide that the Australian Broadcasting Corporation (ABC) cannot be required to pay more than 0.5 cents per head of the Australian population in licensing fees for the broadcast of sound recordings.

 

In practice, it will allow the relevant copyright collecting society to participate in normal free market negotiations with radio broadcasters for licences that reflect the true value of the works being licenced.

 

The Bill will bring the treatment of these rights in line with other forms of copyrights provided for elsewhere in the Copyright Act, including the broadcast of lyrics on radio, which does not have a similar statutory cap on licence fees.

 

The removal of these caps has been recommended by at least five inquiries over nearly 30 years, which have generally found that the caps serve no public policy purpose and distort the market in a way that disadvantages Australian artists and rights holders. A summary of relevant reviews is provided in the table below.

 

Title	Author	Date
Review of Australian Copyright Collecting Societies	Shane Simpson	July 1995
Review of intellectual property legislation under the Competition Principles Agreement	Intellectual Property and Competition Review Committee	September 2000
Effectiveness of current regulatory arrangements in dealing with radio simulcasts	Senate Standing Committee on Environment and Communications	July 2013
Copyright and the Digital Economy	Australian Law Reform Commission	November 2013
Report on the inquiry into the Australian music industry	House of Representatives Standing Committee on Communications and the Arts	March 2019

 

This Bill implements recommendations from the above listed inquiries to remove these legislated caps and to allow artists and rights holders to negotiate a fair rate of remuneration for use of their works, including by Australia’s national broadcaster.

The Bill does not remove the role of the Copyright Tribunal in providing a safeguard for artists, rights holders and radio broadcasters.

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

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

 

Clause 2: Commencement

 

2. Clause 2 provides that the Bill commences on the day after it receives the Royal Assent.

 

Clause 3: Schedules

 

3. Clause 3 provides that each Act specified in a Schedule to the Bill is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to the Bill has effect according to its terms.

 

Schedule 1 - Amendments

 

Copyright Act 1968

 

Item 1 - Subsections 152(8) to (11)

 

4. Item 1 repeals subsections 152(8) to 152(10) of the Copyright Act 1968 . This removes the provisions which currently limit the amount the Copyright Tribunal can determine is payable by radio broadcasters to copyright owners, in respect of the broadcasting of published sound recordings, to one per cent of the broadcaster’s gross earnings.

 

5. Item 1 additionally repeals subsection 152(11) of the Copyright Act 1968 . This removes the provision which currently limits the amount the Copyright Tribunal can determine is payable by the ABC to copyright owners, in respect of the broadcasting of published sound recordings, to an amount not exceeding 0.5 cents per head of the Australian population.

 

6. In addition, the repeal of subsection 152(11) removes the requirement that the Copyright Tribunal make separate orders in relation to sound broadcasts by the ABC of published sound recordings and in relation to television broadcasts of such recordings. The Copyright Tribunal will still be able to make separate orders in relation to sound recordings broadcast by the ABC on television and radio, but will no longer be required to make separate orders.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Copyright Legislation Amendment (Fair Pay for Radio Play) Bill 2023

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Copyright Legislation Amendment (Fair Pay for Radio Play) Bill 2023 amends the Copyright Act 1968 to remove provisions that prevent radio broadcasters from paying more than one per cent of their gross earnings in licence fees for the broadcast of sound recordings.

It additionally removes provisions that prevent the Australian Broadcasting Corporation from paying more than 0.5 cents per head of population for sound recordings played on their radio stations.

At least five reviews, conducted over 30 years, have found that the caps distort the market in a way that disadvantages Australian artists and rights holders. The Bill will allow relevant copyright collecting societies to participate in market-based negotiations for the licensing of sound recordings on radio, supporting artists and rights holders to be paid the Market-Determined rate of payment for the value of their works.

This Bill does not remove the safeguard of the Copyright Tribunal to determine rates of payment for the use of sound recordings on radio, as they would other forms of copyright.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.