2. Retransmission of Free-to-Air Broadcasts
2.1 The position paper states that the Ministry's preferred policy is to repeal section 88 of the Copyright Act and leave television service providers to rely on commercial arrangements to carry other signals. This will mean that there will be no right to retransmit free-to-air broadcasts in a cable programme service.
2.2 Sky's initial submission submitted that section 88 should be extended to allow the satellite retransmission of free-to-air broadcasts, and not just cable retransmissions. Sky affirms this submission. Sky does not consider that it is appropriate to repeal section 88.
2.3 If section 88 is repealed, then an existing right of cable broadcasters will be removed. This would detrimentally affect the over 35,000 subscribers to TelstraClear's cable television services in Wellington and Christchurch who are likely to lose access to high quality distribution of free-to-air channels.
2.4 In suggesting that section 88 should be repealed, the Ministry states that no evidence has been presented to suggest that the incentives provided by the cable retransmission exception continue to be required to encourage investment in the cable industry. The Ministry states that this was one of the two main objectives for the enactment of section 88.
2.5 The other objective, as identified by the Ministry in the position paper, was to improve the quality of television reception in areas where signal quality was inadequate. Sky considers that this policy objective is still relevant and important. Indeed, the Government's objectives for broadcasting policy include the goal of ensuring that all New Zealanders have reasonable and regular access to broadcasting.
2.6 This objective will be more effectively achieved by extending section 88 to permit satellite retransmissions. Digital satellite transmissions are able to reach into areas where traditional transmission is very difficult. Enabling simulcast of free-to-air channels by digital satellite broadcasters to such areas will enable consumers in such areas to receive much higher quality of pictures and, in some cases, television channels that they are currently not able to receive.
2.7 As stated in Sky's initial submission, extension of section 88 to satellite retransmissions would also:
- assist in the transition from analogue to digital television;
- result in the equivalent treatment of cable and satellite broadcasters; and
- promote the effective and efficient use of available distribution technology for wider consumer benefit.
2.8 In relation to the first point, Sky notes that in the media release of 17 February 2003 on the Government's policies for the further development of digital television, the Hon. Steve Maharey stated that the Government wishes to ensure that public and private broadcasters are best able to use digital technology. The media release also stated that the Government is considering what steps it should take, if any, to encourage further uptake of digital television.
2.9 These statements reflect comments in the Cabinet Paper released by the Hon. Steve Maharey on 17 February 2003 entitled Digital Television, which reflect a Government desire to facilitate the introduction of digital television to achieve the Government's objectives for broadcasting.
2.10 Sky's suggestion that section 88 be retained and extended to permit satellite retransmission is consistent with the policy goal of promoting the uptake of digital television. By providing for the retransmission of free-to-air services on both cable and satellite platforms, it will mean that digital television is more attractive to viewers.
2.11 In addition, Sky notes that in Australia, the Copyright Act 1968 was amended by the Copyright Amendment (Digital Agenda) Act 2000 to provide for the retransmission of free-to-air broadcasts on any platform.
2.12 The suggestion to repeal section 88 has presumably been pushed by the free-to-air broadcasters, particularly TVNZ. The retransmission exception, however, does not cause any loss to the free-to-air broadcasters. Indeed, Sky's initial submission discussed benefits from retransmission for free-to-air broadcasters.
2.13 While Sky has entered into commercial arrangements with all free-to-air national broadcasters, there is no guarantee that these arrangements will always be in place, or that they would be agreed between other cable and satellite transmitters and the free-to-air broadcasters. The retransmission exception in section 88, and its extension to satellite transmissions, is an important backup to commercial arrangements.
2.14 Sky therefore submits that the Ministry should reconsider its initial position in relation to section 88. Rather than suggesting that section 88 should be repealed, the Ministry should seek its extension to satellite retransmissions.
2.15 Finally Sky notes that the Ministry has proposed, as an alternative to repealing section 88, that the section could be reconsidered at a later date when the WIPO Standing Committee on Copyright and Related Rights completes its work in relation to broadcasting and related transmission issues. While this would be preferable to repealing section 88, Sky's preference is for section 88 to be extended to satellite retransmissions as has already occurred in Australia.
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