[x-pubpol] HUNDREDS OF (AUSTRALIAN) STATIONS PULL THE PLUG ON DIGITAL

Mon Feb 3 02:23:13 PST 2014

http://www.themusicnetwork.com/ppca-vs-cra/

Close to two hundred commercial region radio stations pulled the plug on
their digital simulcasts at midnight on Friday, following a 2013 Federal
Court decision which requires stations to pay licensing fees on digital
simulcasts. Commercial Radio Australia claim the shutdown was driven by
"record companies' insistence on radio paying twice for playing music."

This move - announced by Commercial Radio Australia (CRA) via a press
release<http://www.radiotoday.com.au/news/whats-new/4112-regional-radio-shutdown-streams-at-midnight.html>
-
 was, not surprisingly, unpopular with rights organisations PPCA
(Phonographic Performance Company Of Australia) who shot out their own
statement<http://www.ppca.com.au/IgnitionSuite/uploads/docs/PPCA%20disappointed%20by%20Commercial%20Radio%20Australia%E2%80%99s%20decision%20to%20impact%20regional%20radio%20listeners.pdf>
deriding
the move as a decision to "deprive regional listeners of local programming,
rather than take up the interim licence scheme negotiated between CRA (on
behalf of its members) and PPCA."

The statement reads in part: "It is disheartening to PPCA to see that,
despite the extensive negotiations and considerable concessions made to
reach a reasonable and commercial interim arrangement, some of CRA's
members have instead  elected to shut down their internet simulcasting
services."

PPCA also mention that the "High Court confirmed what every other country
takes for granted - that the internet simulcast right is a separate right
that needs to be paid for by commercial radio."

"PPCA has never been interested in pursuing anything other than a fair and
commercial outcome", the statement concludes. "Sadly, CRA seems prepared to
penalise regional radio listeners while demanding an outcome that is not
supported in legal or political processes in Australia or around the world."

The High Court decision* refers to an August 2013 rejection of an appeal by
Commercial Radio Australia to overturn a February Federal Court
ruling<http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2013/2013fcafc0011>,
which
ruled that Internet simulcasts do not fall under the 1968 Copyright Act's
definition of a "broadcast". The legal battle has been going since 2010.

Both parties seem determined to make the other the villain in the piece,
with CEO of CRA Joan Warner stating, "Not only would the PPCA's preferred
final scheme impose a second and higher fee, it would require local radio
businesses to incur significant financial costs to put in place the
sophisticated system needed to perform complex calculations to report on
PPCA's proposed scheme."

In response, PPCA referred to the fight as "commercial negotiation between
the billion dollar commercial radio industry and the thousands of
Australian artists and record labels that PPCA represents," adding: "What
PPCA is seeking is no different to every other major Australian sporting
code or content industry which has a traditional and digital revenue
stream."

CRA hit back at this, releasing a further
statement<http://www.commercialradio.com.au/index.cfm?page_id=1001&display_news_id_7573=2067>
yesterday
with the not-at-all-subtle heading "Regional commercial radio stations put
listeners first", in which Joan Warner claims regional commercial radio
stations are "not as the PPCA describes a 'billion dollar commercial radio
industry'.  They are locally run, are integral parts of their local
communities and provide local news, information and entertainment to
communities.

"These radio stations are protecting against the future massive financial
liability their services may incur if the PPCA gets the high cost scheme it
has repeatedly said it wants and also has payments backdated - which it has
also indicated it will pursue. That is why they have had to switch off
their simulcast."

Regardless of the reasons for this digital shutdown, there is no denying
that this is a very bad state of affairs for the Australian music industry.
Hopefully a reasonable compromise can be met, or all stakeholders will be
hit hard by this standoff.
** As Joan Warner points out: "The High Court did not hear this case and
therefore made no decision on this matter. In 2010, the PPCA took the
commercial radio industry to the Federal Court to attempt to change policy
that had been in place for 10 years that said radio simulcasts were part of
a radio station's broadcast.  The PPCA lost.  In 2012 the PPCA appealed.
In 2013, the Federal Court of Appeal made no policy comment on whether an
internet broadcast was part of a radio broadcast, rather they ruled on the
literal meaning of the determination.  The PPCA won the appeal. *

*CRA then sought special leave to appeal to the High Court.  The High Court
did not grant special leave to appeal.  In the third quarter of 2013, the
PPCA initiated legal action in the Copyright Tribunal which is where the
current legal matter continues."*

**Further comment from the PPCA:

*It was CRA who took this matter to the High Court seeking to overturn the
unanimous decision of the Full Federal Court.  In its application for
special leave to appeal, CRA put arguments to the High Court as to why it
thought that it did not need an additional licence to simulcast sound
recordings online.  The High Court effectively rejected those arguments
when it concluded that "an appeal to this Court would enjoy insufficient
prospects of success to warrant a grant of special leave in this matter"
([2013] HCATrans 187).  This amounts to a confirmation that in the High
Court's view, the Full Federal Court got it right.*

-- 
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