What is 'simulcasting' and how does copyright apply to it?

In Plain English

Simulcasting is when a broadcast (like a TV or radio show) is also transmitted online at the same time. Think of it as watching the same TV channel on your computer as is being shown on your TV.

Copyright law treats simulcasting in a few special ways. Generally, making copies of things that are copyrighted requires permission from the copyright owner. However, there are exceptions. For example, schools can copy broadcasts for educational purposes under certain conditions, and there are also rules about making temporary copies for the technical process of simulcasting. Also, if a broadcast doesn't infringe copyright, then simulcasting it also doesn't infringe copyright.

The rules around simulcasting are important for things like licensing agreements (who gets paid for what) and what rules apply to the content (like classification). If the rules change, it could affect businesses that stream content, and even what shows up on free-to-air TV.

Detailed explanation

Simulcasting, the simultaneous transmission of a broadcast via both traditional broadcasting methods and online platforms, is addressed within Australian copyright law, particularly in the context of the Copyright Act 1968 and its interaction with the Broadcasting Services Act 1992.

Definition and Relevance:

Simulcasting involves transmitting content online, often simultaneously with a traditional broadcast. This includes live streaming of TV and radio programs over the internet.
The legal definition of "broadcasting service" and whether it includes online simulcasts has significant implications for copyright, licensing, and content regulation. The Broadcasting Services (“Broadcasting Service” Definition — Exclusion) Determination 2022 specifically addresses this definition.

Copyright Implications:

Educational Use: Educational institutions can copy broadcasts and certain online transmissions of broadcasts for educational purposes under a statutory license (s 113P of the Copyright Act 1968). The Copyright Amendment (Disability Access and Other Measures) Act 2017 also addresses this.
Temporary Copies: Section 111A of the Copyright Act 1968 states that making a temporary copy of an audio-visual item as part of the technical process of making or receiving a communication does not infringe copyright. Section 111B states that the copyright in a subject-matter is not infringed by the making of a temporary copy of the subject-matter if the temporary copy is incidentally made as a necessary part of a technical process of using a copy of the subject-matter.
Simulcasting and Infringement: Section 47AA of the Copyright Act 1968 clarifies that if broadcasting a work doesn't infringe copyright, making a recording or film solely for simulcasting the work in digital form also doesn't infringe copyright.
Licensing: Copyright industries often license content with separate rights for broadcasting and simulcasting, leading to different licensing fees. Removing this distinction could disrupt existing deals and affect the value of intellectual property.

Impact of Changing Definitions:

If online simulcasts were included in the definition of a "broadcasting service" under the Broadcasting Services Act 1992, it could trigger regulatory burdens for broadcasters, potentially requiring separate licenses for online services.
The Broadcasting Services (“Broadcasting Service” Definition — Exclusion) Determination 2022 notes that the expiration of the Determination could expand the scope of the education statutory license, impacting schools, TAFEs, and universities financially.
Classification of content could also be affected, as online content is currently subject to different requirements under the Online Safety Act 2021 compared to traditional broadcasting.

Anti-Siphoning:

The Communications Legislation Amendment (Prominence and Anti-siphoning) Act 2024 and the Broadcasting Services (Anti-Siphoning List) Instrument 2024 aim to ensure that events of national importance and cultural significance are available free to the general public. This involves the Minister specifying events that should be available on free-to-air television, impacting the acquisition of rights by media content service providers.

International Considerations:

The Copyright (International Protection) Regulations 1969 extend copyright protection to sound and television broadcasts made in Rome Convention countries, treating them similarly to Australian broadcasts.

In summary, copyright law treats simulcasting with specific considerations, particularly regarding educational use, temporary copies, and the potential disruption to existing licensing frameworks if the definition of "broadcasting service" changes. The anti-siphoning scheme also plays a role in ensuring free access to important events.