In essence the ruling, handed down at 10am this morning, means that broadcasters can't rely on the existing broadcast license fees for their streams.
Significantly, the fees enabled by the ruling will not subjected to the controversial '1%' cap, which still applies to the standard broadcasting license. Implemented in 1968 copyright legislation, the cap restricts the amount paid by radio to the PPCA to one percent of a broadcaster's gross income. The PPCA had fought to have the cap removed, but were unsuccessful in the High Court last year.
The PPCA – a non-profit which collects license fees for public performance and broadcasting of copyrighted recordings and music videos – can now seek “commercial market rates” for these simulcast licences.
Today PPCA's CEO Dan Rosen said, “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.”
He continued, “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 means we can now move forward with the radio industry to establish an appropriate commercial rate for this simulcast activity.”
Commercial Radio Australia's CEO Joan Warner issued a brief statement to theMusic.com.au today, saying, “We are disappointed with today's Federal Court decision but it's too early to make further comment until we look at all options.”
The unanimous decision by justices Arthur Emmett, Anthony Besanko and David Yates read, “A broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate and inform. Thus 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.”
It also said that given the internet simulcasts are available outside of Australia, the existing licence doesn't account for them.
“If a CRA member provides commercial radio broadcasting services by way of the internet,” the ruling reads, “it would be providing those services outside the licence area.”
The PPCA believe that the separation of licenses opens up the way for a “fairer, level playing field for innovative music streaming companies who compete with commercial radio.”