Australia's commerical radio stations who streamed music via online simulcasts should pay a separate license fee, the country’s High Court has decided. In doing so, the court has drawn a line under a legal battle which has rumbled on for more than four years.
The case is an important one for copyright holders here in Australia, one which establishes a new online revenue stream. It’s also a rare example of music industry organizations going into battle with one another, on this occasion recording companies' collecting society PPCA going up against the commercial radio sector’s trade body CRA.
The PPCA had sought a declaration from the court that Internet streaming of radio programs - or simulcasting -- should not be regarded as a "broadcast" under the country's Copyright Act and should there be subject to a separate music tariff.
CRA had argued that such a transmission formed part of the existing broadcast license and doesn't require any additional payment. In a February 2012 ruling decision, the court found in favor of CRA and said that simulcasts were broadcast within the definition of that term in the Copyright Act.
The PPCA subsequently appealed, the Federal Court overturned the earlier ruling and agreed with the neighboring rights body. The High Court finally wrapped-up the case when it rejected a leave application by CRA and sided with the Federal Court ruling.
The High Court found that Internet simulcasts of radio programs fall outside the definition of a “broadcast” under the country’s Copyright Act.
The PPCA is now celebrating its victory. “This puts an end to the legal wrangling over payment for recorded music streamed on the Internet,” comments PPCA CEO Dan Rosen in a statement. “It confirms radio stations must pay a licence fee for streamed music and we hope to move quickly to work out a fair and proper licensing deal. We look forward to working with radio to establish equitable arrangements.
Rosen adds, “For too long radio has had a free kick - driving listening audience numbers and profits via the internet while not paying artists fairly for use of their recordings.”
The CRA has yet to comment on the High Court decision.
Any new music licence fees would need to be agreed by negotiation or set by the independent Copyright Tribunal.
Importantly, a new licence for streamed music won’t be bound by Australia’s statutory cap which since the 1960s has limited the sum commercial radio operators can be asked to pay for broadcasting music to a maximum of just 1% of their gross income.
Last year, the PPCA lost a High Court challenge to remove the long-standing radio royalty cap.
The PPCA notes there might be a change in the air. The Australian Law Reform Commission has released a discussion paper as part of the Copyright and the Digital Economy inquiry in which it states, “there appears to be a strong case for repeal of the 1% cap.” The PPCA is continuing its campaign to scrap the 1% cap.