The PPCA has won a court appeal that means radio stations will now pay additional royalties for online streaming.

The decision overturns an earlier ruling, made last year, which allowed radio stations to stream without paying extra royalties, because streaming was defined as a ‘simulcast’ of the station’s main program.

CRA’s Joan Warner has told radioinfo: “We are disappointed with the decision after winning the original case but it is too early to comment further as we are exploring all options.”

The new ruling declares that internet simulcasts of radio programs fall outside the definition of a “broadcast” under the Copyright Act and are therefore not covered by existing licences granted to Australian commercial radio stations.

The ruling now means that the PPCA can seek a separate fee for streaming. Significantly, this new fee will not be bound by the statutory cap which limits the maximum amount commercial radio operators can be asked to pay for broadcasting music to 1% of gross income. This has been an area of dispute between commercial radio and the PPCA for some time (see our earlier coverage).

PPCA CEO Dan Rosen believes the decision is an important win for artists and labels:

“We have strongly argued that music streamed by radio stations on the web should be treated separately and is not a “broadcast” as defined by the Copyright Act and Broadcasting Services Act.

“Australia’s radio networks simulcast their leading programs via the web and on digital devices accompanied by advertisements and other revenue opportunities. As the range of devices increases, listening audiences and revenue opportunities are growing. Music is an essential component in all of this – it helps to attract audience numbers and build loyalty so it is important that artists and labels receive a fair share.

“Today’s decision overturns an earlier court ruling and delivers important clarity. It also brings us into line with other key markets around the world where commercial radio
operators have a licence for music used in internet programming. We can now move forward with the Australian radio industry to establish an appropriate commercial rate for this simulcast activity.”

The appeal hearing centred on the definition of simulcasting:

_{Simulcasting occurs when identical continuous audio streams are broadcast by means of two or more platforms, being AM transmission, FM transmission, digital transmission or web streaming. A typical example of simulcasting occurs when a CRA member sends out identical continuous audio streams to an FM transmitter, a digital radio transmitter and an internet web stream server at the same time. Those continuous audio streams can be received by a person who has an appropriate device being, respectively, an analogue AM/FM radio receiver, a DAB+ receiver or other devicethat has capacity to access the internet, such as a computer, mobile phone or iPad.}

And on the interpretation of a legislative determination made by the Minister for Communications in 2000 that a “broadcasting service” does not include a service that makes radio programs available using the internet.

In a unanimous judgment a Full Bench of the Federal Court concluded that:

“The delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet.”

The two sides of the opposing argument are summed up in points 19-23 of the judgement:

19.   CRA’s primary contention is that, where there is a simulcast in the manner described above, there is a communication to the public delivered by a broadcasting service within the meaning of s 6(1) of the Broadcasting Act, as affected by the Ministerial Determination. That is to say, it contends that, where there is a broadcast delivered by a service that delivers radio programs, and the delivery uses the radiofrequency spectrum, cable or optical fibre or other means, or a combination of such means, the communication to the public is not delivered by a service that makes the radio programs available using the internet. Alternatively, CRA contends that, if the communication to the public is delivered by a service that makes radio programs available using the internet, it is a service that delivers radio programs using the broadcasting services bands. Either way, it says, the communication of its radio program to the public is delivered by a broadcasting service. Therefore, it says, the communication to the public is within the licence granted to it in terms of the Member Agreement.

20.  CRA says that the word service relates to a particular channel and not the means of delivery of that channel. CRA’s contention is that DMG’s radio program, which includes the Foreign Land Recording, is broadcast by DMG and that the delivery or making available of that radio program is a broadcast service, irrespective of the platform or means whereby it is delivered or made available to the public. It says that its program is not a service in the sense of being defined, and confined, by the means of delivery identified in the exclusion, namely, making available using the internet.

21.  The essence of CRA’s contention is that the broadcasting service of DMG is the radio program itself, including the Foreign Land Recording, as delivered by various means, including using the broadcasting services bands and using the internet by means of coaxial cable and the like. It says that the means by which the radio program is delivered is irrelevant and that the broadcasting service is the provision of the radio program, by whatever means.

22.  PPCA, on the other hand, contends that the communication of the Foreign Land Recording to the public was not delivered by a broadcasting service, because the service that delivered the sound recording, by making it accessible through the Nova URL, was a service that madeavailable the radio program, including the Foreign Land Recording, using the internet and that service is not a service that delivers radio programs using the broadcasting services bands. PPCA contends, specifically, that the word service, as used in the Ministerial Determination, is directed to that which is actually being delivered by DMG, being the radio program wrapped up in a delivery mechanism, and received by a member of the public, who receives it either by means of a radio receiver or through a device connected to the internet. Thus, it says, the provisions of the Ministerial Determination are concerned, in essence, with the platform or method of delivery of the communication in question. It says that the radio program made available by DMG using the internet is delivered by a service that makes radio programs available using the internet and that it is not delivered using the broadcasting services bands.

23.  In effect, PPCA contends that the making available by DMG of its radio program using the internet is a different service from the delivery of that radio program using the broadcasting services bands. Thus, PPCA says, DMG, in the circumstances described, is making communications to the public that are delivered by two quite distinct broadcasting services. One of those services delivers DMG’s radio programs using the broadcasting services bands. The other service makes its radio programs available using the internet, which will involve cable and optical fibre or other means or a combination of those means. The first service, it says, is within the definition, in that it falls within the preamble of the definition. The second service, it says, is not a broadcasting service, because it falls within the exclusion in the Ministerial Determination, and it is not within the exception to that exclusion.

The full Federal Court judgement is available here.

Now that’s settled, the next disputed territory may be mobile phone apps, which are not technically delivered by internet streaming, but are more and more being used to listen to radio broadcasts.