Part Four: Communication to the Public
A. Introduction
(i) The Issues
64. The discussion paper raised a number of issues concerning the existing right provided to copyright owners under the Act to control the communication of their works to the public by wired or wireless means. The paper also discussed the broad right of communication created by the WIPO Internet Treaties.
65. The scope of the communication right was considered in the digital context from two perspectives. First, "push" technologies such as communication to the public via the Internet, for example, through webcasting. Secondly, "pull" technologies such as on-demand Internet services.
66. In relation to the first category - push technologies - the discussion paper asked if the existing cable service right (and definition of cable programme service in section 4) covered Internet services. It then asked if there is a need to amend the Act explicitly to include a right to control communication to the public of works over the Internet. Submissions were also sought on how such a right could be provided for in the Act (if it is not already provided for). A number of specific questions were directed at the current cable transmission right and the definition of cable transmission service and whether it includes webcasting. A side issue that arose is whether webcasts should be protected as copyright works.
67. In the context of pull technologies, the discussion paper asked whether the Act should be amended to provide copyright owners with an exclusive right that expressly controls the making available of works in interactive, on demand systems, such as the Internet. Once again, respondents were first asked if such a right is already provided by way of section 4. Submissions were also sought on how an express making available right should be provided (if it is not already provided for in the Act).
68. The issue of re-transmission of free to air broadcasts by cable programme services was also considered in the context of the communication right.
(ii) The New Zealand Situation
69. The Act currently provides copyright owners with the exclusive right to broadcast a work or to include a work in a cable programme service.18
"Broadcast" is defined to mean a wireless transmission either capable of being lawfully received by the public (in New Zealand or elsewhere) or for presentation to members of the public (in New Zealand or elsewhere).19
"Cable programme service" is extensively defined in the Act,20
subject to a list of exceptions, as a transmission service by wired telecommunication means to the public or for reception at two or more places, either simultaneously or at different times, in response to requests.
(iii) The International Situation
WIPO Internet Treaties
70. The discussion paper also considered the communication right from the perspective of the broad "right of communication to the public" provided in the WIPO Internet Treaties. This new right is broader than the existing right of communication to the public provided in the Berne Convention, which is confined to performances, broadcasts, and recitations of works.
71. Article 8 of the WCT provides (without prejudice to specified provisions) that:
[A]uthors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.21
72. Articles 10 and 14 of the WPPT applies the communication right to performers and producers of phonograms. The WPPT defines these rights as ones of "making available to the public". Article 10 [and 14] of the WPPT provides:
Performers [producers of phonograms] shall enjoy the exclusive right of authorising the making available to the public of their performances [phonograms], by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.
73. The inclusion of the broad right of communication to the public contained in the WIPO Internet Treaties is seen by many commentators as indicative of the growing importance of rights of communication, compared to reproduction, in the digital age.
Australia
74. The CADA introduced a broad-based, technology-neutral right of communication to the public into Australian copyright law. It is an exclusive right in literary, musical, artistic and dramatic works, sound recordings, films and broadcasts.22
It does not, however, apply to typographical arrangements of published editions.
75. The new communication right replaces and extends the existing technology-specific broadcasting right (anchored, as in New Zealand, to wireless transmission) and the limited cable diffusion right that was previously provided in Australia (limited to control of transmission to subscribers to a "diffusion service").
76. The retention of a number of provisions specifically relating to broadcasts and the activities of broadcasting organisations required the retention of a "broadcast" definition.23 The provision relating to "diffusion service"24 has been repealed, as the new definition of broadcast includes cable transmissions.
77. The term "communicate" is defined as meaning to make available online or electronically transmit (whether over a path, or combination of paths, provided by a material substance or otherwise) a work or other subject-matter.
78. This definition means that the use of wireless, wired (cable) and more recent technologies such as fibre optics, and combinations of any number of different transmission media, are included within the ambit of the communication right.
79. The reference to "making available online" also means that Australia now provides an explicit making available right that, consistent with Article 9 of the WCT and Article 14 of the WPPT, provides copyright owners with a right to restrict the uploading of material onto an Internet server. The incorporation of the making available right as part of the broad communication right follows the articulation of the right in the WIPO Internet treaties.
80. The meaning of "to the public" is defined to explicitly extend the scope of the communication right to include activities that communicate or make copyright material available from Australia to overseas audiences.25
United States
81. The Digital Millennium Copyright Act 1998 ("DMCA"), which amended the Copyright Act 1976 ("the US Act"), did not include a broad-based communication right. The United States ("US") considered that a right of communication was not necessary, as the norms contained in Articles 6 and 8 of the WCT were already recognised by US law, therefore there was no need to expressly implement them to enable ratification.26 Support for this approach may be found in US case law.27
European Union
82. The Copyright Directive provides a broad-based communication right, in language that essentially parallels that of the WIPO Internet Treaties.28
83. Article 3 protects the transmission and distribution of copyright works other than in a physical form to members of the public not present at the place where the communication originates. Article 3(1) states:
Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
84. Article 3(2) provides the right of "making available" to performers (for fixations of their performances), phonogram producers (for their phonograms), producers of the first fixations of films (for the original and copies of their films) and broadcasting organisations (for fixations of their broadcasts).
B. Communication of Works to the Public over the Internet
(i) The Issues
85. The discussion paper considered whether there is a need to control the communication to the public of works over the Internet, for example, via webcasting.
(ii) The New Zealand Situation
86. As noted above, the Act currently provides copyright owners with the exclusive right to broadcast a work and to include a work in a cable programme service. The application of the cable programme service right contained in the Act to Internet activities, such as webcasting, is, however, not clear. While section 4 of the Act does not appear to exclude webcasting from the meaning of "cable programme service" (which might reasonably imply that it is included), the application of the section to webcasts is dependent on the interpretation of a detailed and technical section of the Act. The application of the section to webcasting has not been judicially considered, and the section was drafted before the provision of webcasting services could have been anticipated.
(iii) The International Situation
87. As noted above, Australia and the European Union (through its Copyright Directive) have created a broad-based right of communication to the public that includes the right to control the communication to the public of works over the Internet. Part A(ii) above outlines the express provisions. The US Act (as amended by the DMCA) does not contain an express right of communication to the public. Existing rights of distribution and public display are considered, by the US, sufficient to meet the requirements of the WIPO Internet Treaties.
(iv) Options
88. The key issue that arises in this section is whether the existing communication right (to broadcast a work or include it in a cable programme service) provides a right to control the communication to the public of works over the Internet, and is such a right desirable?
89. On the face of it, the existing cable programme service right is probably sufficient to cover webcasting (as webcasting is not excluded from the definition of cable programme service in section 4 of the Act), and therefore indirectly provides a right of communication to the public over the Internet. As noted above, however, the application of section 4 to webcasting is dependent on the interpretation of a detailed and technical section of the Act, and the question has not been judicially considered.
90. Respondents to the discussion paper (both copyright owners and user groups) unanimously agreed that the Act requires amendment to provide copyright owners with an explicit right to control the communication to the public of works over the Internet. It was suggested that such an amendment is required to remove ambiguity and provide certainty, assist copyright owners to take action against the unauthorised webcasting of their works, and encourage the use of new technologies by copyright owners to transmit copyright material to consumers.
91. Submissions also stressed that consideration of a broad technology-neutral communication right inevitably raises the issue of what permitted acts should apply.29
92. Submissions were sought on three options for the provision of an explicit right to control communication to the public of works over the Internet:
- Providing a separate webcasting right;
- Amending the definition of "cable programme service" to expressly include webcasting; or
- Replacing the broadcasting and cable programme service rights with a broad technology-neutral communication right that would cover broadcasting, inclusion in a cable programme service, webcasting or any future method, including any combination of technologies.
93. The vast majority of submissions favoured the third suggestion - the creation of a broad technology-neutral right of communication to the public. Only two respondents favoured the creation of a separate webcasting right, and one supported amending the definition of cable programme service. Other submitters cautioned against the creation of a separate webcasting right as it was technology-specific and therefore only a "temporary fix".
C. Making Available
(i) The Issues
94. Submissions were sought on the question of whether the Act should be amended to provide copyright owners with an exclusive right that expressly controls the making available of works in interactive, on-demand systems, such as the Internet.
(ii) The New Zealand Situation
95. On the face of it, the right to restrict unauthorised inclusion of a work in a cable programme service appears applicable to on-demand services. The exclusion, however, of transmission services that are interactive in nature, means that it is unclear if the cable programme service right would allow copyright owners to take action against the unauthorised making available of copyright works (for example, music recordings or films) on a server for users to access, select and download at their own convenience.
96. The Act does not, therefore, currently provide copyright owners with an explicit right to restrict the "making available" of their works in electronic form through interactive "on-demand" systems, for example by uploading copies of a work to an Internet page for users to download at their convenience. While unauthorised copying by downloading amounts to copyright infringement, the posting of a legitimately purchased electronic copy of a work may not (for example by connecting a computer to a publicly accessible network such as the Internet).30 In this situation copyright owners might not be able to take action against the person who makes a work available without permission. The Act is, therefore, unclear as to whether copyright owners can prevent the unauthorised making available of their works.
(iii) The International Situation
97. A making available right is provided for as part of a broad-based right of communication to the public in the WIPO Internet Treaties, the Australian Copyright Act, and the Copyright Directive (see analysis above in introduction section).
(iv) Options
98. The key issue in this section is whether the Act provides a right to control the making available of works in interactive, on-demand systems.
99. It seems that the Act does not currently provide copyright owners with an explicit right to restrict the "making available" of their works in electronic form through interactive on-demand systems. The right to restrict unauthorised inclusion of a work in a cable programme service appears however, on the face of it, applicable to on-demand services. The exclusion, however, of transmission services that are interactive in nature, means that it is unclear if the cable programme service right would allow copyright owners to take action against the unauthorised making available of works on a server for users to access, select and download at their own convenience.
100. A large number of respondents addressed the "making available" question, almost all of whom (including a number of user groups) were of the opinion that the Act should provide copyright owners with the ability to control how their works are made available (if it does not already). These respondents considered that the existing provisions in the Act do not provide copyright owners with this ability, or (alternatively) that the Act is ambiguous and should be clarified to provide such a right explicitly.
101. Some submissions (generally from copyright users) argued that any explicit making available right must be subject to the existing permitted acts applicable to broadcasts and cable programmes. Some of these respondents also suggested that the right be subject to new exceptions to provide for reasonable public access to information. Only three respondents expressly opposed the introduction of an explicit making available right.
102. Respondents were asked to comment on how an express making available right could be provided. There was no support for its provision as part of the distribution right (the right to issue copies to the public), particularly as this right is subject to exhaustion. Two submissions were in support of creating a separately stated exclusive right. The vast majority of respondents (including both copyright owners and user groups) expressed support for the suggestion that any express making available right be included as part of a new technology-neutral right of communication to the public, should such a right be created.
103. The following options have been identified following the analysis of submissions:
- No change to the Act.
- Amend the definition of "cable programme service" (section 4) to provide or clarify that the making available of a work for on-demand access is inclusion in a cable programme service.
- Introduce a new (separate) exclusive making available right (and amend section 4 to clarify that it does not cover making available).
- Include the ability to control the making available of works within the scope of a new technology-neutral communication to the public right.
- Include an on-demand making available right within the ambit of the distribution right (section 16).
D. Webcasts as Copyright Works
(i) The Issues
104. Submissions were sought on whether webcasts, as transmissions to the public via the Internet, should be protected as copyright works in the same way that broadcasts and cable programmes are protected. The question was asked on the assumption that webcasts are not already protected as cable programmes via the existing definition of cable programme service in section 4 of the Act (which they may well be).
(ii) The New Zealand Situation
105. The Act provides protection for the signals that carry programme content in both broadcasts and cable programmes. Broadcasters and cable programme service providers, therefore, own separate copyright in their transmissions that is independent of copyright that might exist in the content carried by transmission signals.
(iii) The International Situation
WIPO Internet Treaties
106. The WIPO Internet Treaties do not address this issue.
Australia
107. Prior to the CADA amendments, copyright could subsist in broadcasts but not cable transmissions. The 1997 Australian discussion paper suggested there was a case for extending copyright protection to cable transmissions to the public. It did not outline a supporting argument for webcasts. Despite this, the CADA amendments do appear to have provided signal copyright protection to webcasts through the definition of "broadcast" in the Broadcasting Services Act 1992.
(iv) Options
108. The question to be addressed in this section is whether there is a need to extend protection to webcasts (as transmissions to the public via the Internet) as copyright works under the Act (if they are not already protected as a cable programme transmission).
109. Most of the respondents who commented on this issue considered that webcasts should be protected as separate copyright works. Many suggested that sufficient reasons do not exist to differentiate between traditional transmission technologies, such as broadcasting and cable programme services, and new technologies such as the Internet. One respondent suggested that webcasts are already protected under the Act as either broadcasts or cable programmes.
110. Respondents who opposed the extension of copyright protection to webcasts noted that protection for webcasts is not required as an incentive to engage in webcasting activities, which are low cost and comparatively easily undertaken. They compared webcasting to broadcasting and cable programme service activities, which require high levels of capital investment.
111. Respondents unanimously agreed that, if webcasts were to be subject to copyright protection, they should be protected under a new technology neutral category of "communication works" rather than through the creation of a new category of works to protect webcasts.
112. The issue of what exceptions (including those that apply to copyright in broadcasts and cable programmes) should apply to webcasts or new transmission technologies if they were to be expressly protected as copyright works is a key consideration. Another question that arises is whether webcasts that are merely retransmissions of broadcasts should be exempted from protection, the same way as cable programmes that are retransmissions of broadcasts.
113. The following options were identified following analysis of submissions:
- No change to the Act (whether or not webcasts are protected under current definition of cable programme service).
- Amend the definition of "cable programme service" (section 4) to provide or clarify that webcasts are protected as cable programmes (if it does not apply to webcasts already).
- Introduction of a new category of copyright works to expressly protect webcasts.
- Replace the broadcast and cable programme categories with a technology neutral "communication works" category, that would include webcasts.
E. Cable Retransmission of Free-to-Air Broadcasts
(i) The Issues
114. The discussion paper considered whether the cable retransmission right (of free to air broadcasts) should be retained, or perhaps extended to give the same opportunity to satellite subscription broadcasters and webcasters.
(ii) The New Zealand Situation
115. Section 88 of the Act provides that a broadcast made from a place in New Zealand can, by reception and immediate retransmission, be included in a cable programme service, except where a licensing scheme or arrangement is in place. Section 88(2)(b) provides that copyright in any work included in a broadcast is not infringed "if and to the extent that the broadcast is made for reception in the area in which the cable programme service is provided".
116. When section 88 was enacted in 1994, there were two main objectives. First, to encourage greater competition and investment in the cable network and service industry by allowing cable service providers to bundle free-to-air television with telephone and other communications services. Second, to improve the quality of television reception in areas where signal quality was inadequate.
(iii) The International Situation
TRIPS
117. Under TRIPS , New Zealand is required to provide broadcasting organisations with the right to control retransmission of their broadcasts.31 Exceptions can, however, be made to this right in certain circumstances. New Zealand is not therefore under any international obligation that requires any particular approach to retransmission of broadcasts by wired means.
WIPO Internet Treaties
118. The WCT and WPPT do not include provisions concerning this issue. Issues concerning copyright and the rights of broadcasting organisations are, however, currently on the work programme of the WIPO Standing Committee on Copyright and Related Rights in anticipation of the development of new international standards concerning copyright in relation to broadcasting and related transmission issues.
Australia
119. The CADA introduced a new statutory licensing scheme for retransmission of free-to-air broadcasts. The scheme provides "equitable remuneration" to the copyright owners in the content carried by the signal. Previously, section 199(4) of the Australian Act provided an exception to the exclusive transmission right of copyright owners in works or films in relation to a diffusion service. A retransmitter is still, however, required to obtain a licence from the owner of copyright in the broadcast itself, which is a prerequisite to the application of the scheme.32
120. Due to concerns about the effects of Internet retransmission on geographical licensing arrangements, the retransmission licensing scheme does not apply to Internet retransmissions of free-to-air broadcasts.33
Internet retransmission services have to obtain the permission of and negotiate voluntary licensing arrangements with both free-to-air broadcasters and owners of copyright in the content.
121. The CADA also introduced an exception to copyright infringement for broadcasters in relation to the underlying works in broadcast simulcasts for digital television.34
United States
122. The US Cable Television Consumer Protection and Competition Act 1992 applies a "must carry" approach to retransmission. Under this arrangement, where "public service channels" are granted "must carry" status, a cable company or other retransmitter is obliged to carry the channel, without a fee, if so requested. Other channels, not designated as public service channels, are free to enter into normal commercial arrangements with retransmitters.
Canada
123. Canada has recently completed a review the application of the compulsory retransmission licence to the transmission of broadcasts and programmes over the Internet.
124. Under Canadian copyright law, a compulsory licence scheme requires cable and satellite companies to pay royalties to rightholders where they transmit programmes contained in broadcast signals to subscribers.35 They do not, however, require the consent of rights holders to retransmit. Royalties (most of which are distributed to film and television producers and broadcasters) are set by the Copyright Board under the "retransmission tariff".
125. A discussion document on these issues sought views on a range of options including:
- An Internet exclusion from the compulsory licensing scheme;
- A technology-neutral licence subject to territorial and other possible restrictions for Internet retransmissions; and
- Amending the scheme so that the requirement for a signal to be retransmitted "simultaneously and in its entirety" does not exclude Internet retransmissions that involve a reasonable delay or loss of information (which is not evident to a viewer) arising solely from steps necessary to convert a signal into a format suitable for retransmission).
126. As a result of the consultation process a Bill to amend the retransmission rules has recently been passed by the Canadian House of Commons,36 which:
- Clarifies that existing distribution systems, such as cable and satellite, may continue to rebroadcast over-the-air radio and television signals by paying royalties set by the Copyright Board and respecting other conditions set out in the Copyright Act; and
- Establishes a new regulation making power that will allow new types of distribution systems, including the Internet, to be used to retransmit broadcast signals if they meet appropriate conditions set out in the regulations.
European Union
127. The directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission37 ("the Satellite/Cable Directive") addresses the issue of cross border satellite broadcasting and cable retransmission of programmes. According to the recitals, retransmission had been obstructed by differences in national copyright laws in particular by differences in rules relating to negotiations on cable distribution.38
128. The Satellite/Cable Directive applies to both the relationships between the retransmitter and the initial broadcaster, and with owners of copyright content in programmes broadcast. Article 8 of the Satellite/Cable Directive provides that cable retransmission should take place "on the basis of individual or collective contractual agreements between copyright owners, holders of related rights and cable operators". Member States were able to retain any existing statutory licensing schemes until December 1997.
129. Article 9 of the Satellite/Cable Directive provides that the right of copyright owners and holders of related rights to grant or refuse authorisation to a cable operator for a cable retransmission "may only be exercised through a collecting society".39 Right do, however, have the right to choose a collecting society and take a direct share in remuneration.40 Article 9 does not apply to a broadcasting organisation in respect of its own transmissions.41
(iv) Options
130. The key issue that arises in this section is whether the cable retransmission right (in section 88 of the Act) should be retained or repealed. If it is retained should it be extended to give the same opportunity to satellite subscription broadcasters and webcasters?
131. Respondents were split in their views concerning section 88. Only one submission explicitly stated that the section should be retained in its current form. The remaining respondents were equally divided between abolishing the section altogether and expanding it. A small number commented that further investigation would be warranted before a decision is made on the issue of retransmission.
132. Five respondents argued that the section should be expanded to treat all technologies equally. A further five respondents suggested that section 88 should only be expanded to encompass satellite broadcasting, but not webcasting. This approach was predominantly based on the concern that television content rights are usually licenced on a county-by-country basis and retransmission over the Internet to other countries could affect the value of those rights to overseas markets. One respondent noted that webcasting does not necessarily involve the same level of investment that is required for cable and satellite networks.
133. The main objectors to section 88 were free-to-air broadcasters and copyright owners. They considered that the reasons for providing such an exception for cable programmes were no longer valid, and that its continued operation could jeopardise free-to-air broadcasting in New Zealand. It was suggested that television service providers should rely on commercial arrangements to carry each others' signals. The "must carry" approach of the US Cable Television Consumer Protection and Competition Act 1992 was referred to.
134. Seven respondents considered that, if section 88 were to be expanded to include satellite pay-TV service providers, any retransmissions of free-to-air broadcasts should be free of charge and without encryption.
135. The following options were identified from analysis of submissions:
- No change to section 88 (if definition of cable programme service includes webcasting, section 88 might already apply to webcasting).
- Abolish section 88 (leaving television service providers to rely on commercial arrangements to carry other signals).
- Extend section 88 to cover satellite retransmission.
- Extend section 88 to cover all technologies (including webcasting).
- Designate certain free-to-air broadcasts as "must carry" requiring pay-television channels to carry them without a fee.
- Require that retransmissions are made free of charge and unencrypted.
18 Copyright Act 1994, section 16(1)(f).
19 Copyright Act 1994, section 2(1) - definition of "broadcast".
20 Copyright Act 1994, section 4.
21 The Agreed Statement for Article 8 provides: It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention ... .
22 Copyright Act 1968 (Australia), sections 31 and 85 to 88.
23 The term "broadcast" has been redefined to mean "a communication to the public delivered by a broadcasting service within the meaning of the Broadcast Services Act 1992" - Copyright Act 1968 (Australia), section 10(1). It was previously defined as "transmit by wireless telegraphy to the public". The Broadcasting Services Act 1992 defines "broadcast service" as a service that delivers programmes "whether the delivery uses the radio frequency spectrum, cable optical fibre, satellite or any other means or a combination of those means", but excludes teletext and on-demand point-to-point services.
24 Which was restricted to "distributing broadcast or other matters ... over wires or over other paths provided by a material substance" - Copyright Act 1963 (Australia), section 26(1) (Repealed).
25 Copyright Act 1968 (Australia), section 10(1) - "to the public means to the public within or outside Australia".
26 Fitzpatrick, "Copyright Imbalance: U.S. and Australian Responses to the WIPO Digital Copyright Treaty", European Intellectual Property Review, Vol. 22, Issue 5, May 2000, p223.
27 In the case of Marobie-Fl, Inc v National Association of Fire Equipment Distributors 45 U.S.P.Q.2d 1236 (N.D. 111.1997) the Court concluded that the mere making available of files for downloading was sufficient for liability, because once the files were uploaded onto a webserver they were available for downloading by Internet users, and the server transmitted the files to users when requested.
28 The Copyright Directive is to be implemented into national legislation by Member States by December 2002.
29 Permitted acts are discussed generally below in Part Eight.
30 It seems likely, however, that it would breach the software licence.
31 TRIPS Agreement, Article 14(3).
32 Copyright Act 1968 (Australia), section 135ZZK(5).
33 Ibid, section 135ZZJA.
34 Under the Broadcasting Services Act 1992, free-to-air broadcasters switching to digital transmission technology are required to simulcast their digital broadcasts in both analogue and digital form for a period yet to be determined by the Australian Broadcasting Authority.
35 Copyright Act (R.S. 1985, c. C-42) (Canada), section 31.
36 18 June 2002.
37 1993/83/EEC, 27 September 1993.
38 Ibid, Recital 5.
39 Recital 28 notes that this is necessary to ensure that the "smooth operation of contractual arrangements is not called into question by the intervention of outsiders holding rights in individual parts of [a] programme".
40 Ibid, Article 9(2).
41Ibid, Article 10.
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