Initial thoughts on PPCA v CRA (but still thinking it through)
- It seems counter-intuitive that the platform by which content is delivered should determine whether or not a particular royalty regime applies when the content is delivered simultaneously and in identical form.
- This is not a case where a third party is re-transmitting the original (as occurs when Foxtel re-transmits free to air television networks), in which case the rationale for some form of separate royalty arrangement is apparent. Incidentally, Screenrights, the collecting society for FTA TV re-transmission rights has had the same view of the Ministerial Determination as the PPCA (for obvious reasons).
- The result of the PPCA decision is that if, for example, a hypothetical mobile device had an AM/FM radio receiver and wi-fi internet access, a transmission of a sound recording received on the radio receiver would be within the current licence granted by PPCA but the identical simultaneous transmission of the same sound recording to a browser on the same device using the wi-fi network would not be within the licence. This is anomalous and runs counter to the technology-neutral philosophy that underpins recent amendments to the Copyright Act. Similar comments were made about the Full Court decision in the Optus TV Now case, but that decision did not trouble the High Court.
- Considering the amount of extrinsic material that the Court in PPCA considered, it might be thought curious that the Explanatory Memorandum to the Copyright Amendment (Digital Agenda) Bill 1999 was not considered. In particular, the introduction to that EM states, in part:
“The centrepiece of the Bill is a new technology-neutral right of communication to the public. The new right will replace and extend the existing technology-specific broadcasting right which currently only applies to “wireless” broadcasts. Further, the new right will replace the limited right to transmit to subscribers to a diffusion service. The new right of communication to the public also encompasses the making available of copyright material online.”
- On the other hand, going down this track simply demonstrates that the Ministerial Determination was at odds with the principle of technological neutrality that the then Government was, at almost the same time as the Minister made the Determination, enshrining in the Copyright Act.