1. What is webcasting?

Webcasting (or streaming media) can be described as the transmission of video / audio content over the Internet delivered in such a way the end user experiences an uninterrupted flow of information (Webcasting).

2. Webcasting may require copyright licence

An entity providing a streaming audio / video service over the Internet from its website may need to negotiate a copyright licence with both the Australian Performing Rights Association (APRA) (see http://www.apra.com.au) and the Phonographic Performance Company of Australia (PPCA) (see http ://www.ppca.com.au).

Copyright in a sound recording exists firstly in the sound recording of the performance and secondly in the song (composition or lyrics).

Copyright in a music video clip generally exists in:
(a) the cinematograph film that embodies the recorded performance;
(b) in the recorded performance itself; and
(c) in the song (composition or lyrics).

Recent amendments to copyright legislation confer on copyright owners an exclusive right to communicate their work to the public over the Internet (see Copyright Fact Sheet). Consequently, a person webcasting copyright protected sound recordings or music video clips will infringe this exclusive right of communication unless they have a licence from the copyright owner.

The PPCA represents record companies and APRA represents composers and music publishers.

The PPCA is authorised under the copyright legislation to grant contractual licences in respect of:

(a) the communication of a copyright protected sound recording over the Internet; or
(b) the communication of a copyright protected music video clip over the Internet.(1)

APRA is authorised under copyright legislation to grant contractual licences in respect of the use of a copyright protected song (copyright in the composition or lyrics) in the communication of a sound recording or music video clip over the Internet.(2)

Note that a licence is only required in relation to a copyright protected work. See Copyright Fact Sheet for more information on how copyright arises and is assigned.

See Moral Rights Fact Sheet in relation to the correct attribution of a sound recording or music video to the relevant author.

Visit http://www.apra.com.au and http://www.ppca.com.au for licensing issues and more information.

3. Webcasting is not a broadcasting service

Internet audio and video streaming outside the broadcasting services bands (for example, through home computers or on mobile phones) is not a broadcasting service.(3) A licence is not required under the broadcasting services legislation to provide that service.

4. Webcasting is not a datacasting service

To the extent streamed audio and video content is delivered by a mechanism other than the broadcasting services bands (eg by webcasting) the datacasting legislation will not apply.

The Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 (Cth) requires a person who wishes to provide datacasting services to hold a datacasting licence.

A datacasting service uses the broadcasting services band to deliver content in the form of text, data, speech, music (or other sounds), visual images (including animations) or other form or combination of these to persons having equipment appropriate for receiving that content.(4)

The holder of a datacasting licence is only permitted to deliver certain content according to prescribed content rules. The datacasting legislation aims to encourage datacasting licensees to provide a range of services other than traditional broadcasting services.

The datacasting legislation distinguishes between content controlled and provided by the licensee on the one hand (which is subject to the content rules) and content obtained from the Internet by an end user by virtue of an Internet carriage service provided by the licensee as part of a datacasting service.

Where a user can access the Internet through a carriage service provided by the datacaster as part of a datacasting service, the content rules will not apply to that part of the service which provides Internet access to the end-user. Anti-avoidance provisions exist to prevent licensees from datacasting Internet content that has the sole or dominant purpose of avoiding the datacasting legislation (and Content Rules).

Unless an exemption order is granted from the Australian Broadcasting Authority (ABA), the content rules will apply to Internet content selected and copied from the Internet by the datacaster and transmitted to a user using the broadcasting services bands. An exemption order will not be available if the purpose of the datacasting scheme is to avoid the content rules.

Accordingly, providers of television or radio program services delivered through the Internet will not (unless the broadcasting services band is used) be required to hold a datacasting licence under the datacasting provisions of the Broadcasting Services Act 1992(Cth).

Currently, Internet service providers are relatively free of regulation and are able to offer a broader range of content than datacasters because they are not subject to the rigorous content rules that apply to licensees under the datacasting legislation.

The datacasting legislation only applies to services provided over the broadcasting services band. It therefore has no impact on other delivery mechanisms such as satellite, cable or telephone, Internet based interactive television or Wireless Application Protocol.

Other relevant Articles on this site:


Other relevant Fact Sheets:
Copyright
Moral Rights 

End Notes
(1) Copyright Act 1968 (Cth) sections 85, 86
(2) Copyright Act 1968 (Cth) sections 85, 86
(3) Media Release, 27 September 2000, Senator Richard Alston
(4) Broadcasting Services Act 1992(Cth)