Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

by leave—I move Democrat amendments (1), (2) and (3) on sheet 5132 revised:

(1)    Schedule 1, page 37 (after line 12), after item 12, insert:

12A Subsection 152(1) (after the definition of broadcasting)

Insert:

community radio broadcasting licence means a community broadcasting licence allocated by the Australian Broadcasting Authority under the Broadcasting Services Act 1992 that authorises the holder of the licence to broadcast radio programs.

(2)    Schedule 1, page 37 (after line 12), after item 12, insert:

12B Subsection 152(8)

Repeal the subsection, substitute:

        (8)    The Tribunal must not make an order that would require a broadcaster who is the holder of a community radio broadcasting licence to pay, in respect of the broadcasting of published sound recordings during the period covered by the order, an amount exceeding 1% of the amount determined by the Tribunal to be the gross earnings of the broadcaster during the period equal to the period covered by the order that ended on the last 30 June that occurred before the period covered by the order.

(3)    Schedule 1, page 37 (after line 12), after item 12, insert:

12C Subsection 152(9)

Repeal the subsection, substitute:

        (9)    If a broadcaster that is the holder of a licence referred to in subsection (8) has, with the permission of the Australian Broadcasting Authority, adopted an accounting period ending on a day other than 30 June, the reference in subsection (8) to 30 June is, in relation to the broadcaster, a reference to that other day.

community radio broadcasting licence means a community broadcasting licence allocated by the Australian Broadcasting Authority under the Broadcasting Services Act 1992 that authorises the holder of the licence to broadcast radio programs.

These amendments deal with something that should be in the bill but is not. As I mentioned in my speech in the second reading debate, the whole bill before us—and let us not forget that it has 12 schedules and 213 pages—deals with a huge range of issues, particularly areas like fair use provisions, the digital agenda review and technological protection measures. Whilst the very final stage of the process—the extremely rushed consideration of the legislation—has been unsatisfactory, the procedures leading up to that did involve a lot of public consultation and a lot of different reviews and exposure drafts of legislation. That is certainly welcomed.

Alongside of all those reviews there was also a review announced nearly two years ago by the Attorney-General, Mr Ruddock, on the current circumstance surrounding the cap on the licence fee for playing sound recordings on radio—usually known by the terms ‘music’ and ‘songs’. This review relates to an issue that has been around for a long time. The debate has been around for a long time. But it was conducted alongside all of the other ones, with a range of public consultation and stakeholder input.

Many of the changes that we are dealing with tonight in the legislation were announced by the Attorney-General in a very long media release on 14 May 2006. It was headed ‘Major copyright reforms strike balance’. All those reforms, in areas like legislative reform to tackle piracy, strengthening of copyright enforcement, new flexible dealing exceptions, reforms arising from the digital agenda review and new exceptions for private use, are contained in the legislation—even the amendments to do with pirate goods coming into the country and the activities of Customs. All of these changes were announced on 14 May 2006. All of them, in varying forms and amended in some ways following further consultation, are contained in this legislation, except for the Attorney-General’s commitment to removing the licence fee cap for playing sound recordings on radio. I will read the Attorney-General’s comments from that time into the record, because it puts the argument quite well. He says:

After an open public consultation process, the Government has agreed to remove the legislative cap on copyright licence fees paid by radio broadcasters for playing sound recordings. The one per cent cap was adopted in 1968 to protect radio broadcasters because they faced special economic difficulties at that time. Sound recording owners (mainly record companies and artists) and radio broadcasters, who operate in a profitable and robust industry, should be able to negotiate a market rate without legislative intervention. If they can’t agree on fees, they can put their case to the independent Copyright Tribunal, like any other copyright owners and users.

That is what Mr Ruddock said on 14 May 2006, as I said, as part of a media release headed ‘Major copyright reforms strike balance’. One of the concerns I have is that, by not having this in this package of reform measures, it actually distorts the balance, as was made clear quite specifically in evidence given to the Senate committee hearing into this legislation.

Some of these other changes will directly lead to lower income streams for copyright holders, particularly for performers—that is, lower royalties, particularly with some of the changes to copying. I am not saying I therefore oppose those changes; I am simply saying that it is quite clear, almost by definition, that that will be the case. It will now be opened up for people to be more easily able to copy as part of fair use changes. It is reasonable to say, as Mr Ruddock’s headline implies, that it is part of a balance that you should also make the change which opens up to a market rate the income available and the income stream for performers, artists and musicians in Australia. It therefore harms that balance not to have this measure in the legislation.

In his summary remarks on closing the second reading stage of the debate, the minister responded to my comments in the second reading stage. When I asked why the removal of the one per cent cap on licence fees involving the broadcast of sound recordings was not contained in the bill, the minister said:

The government agrees that this is an important issue and it has consulted and come to a decision on it ... A number of submissions from affected stakeholders in recent months have meant that further work is required. This could not be completed in time for the introduction of this bill. The government has therefore not made a decision about the timing of this reform.

I must say that I do not think that satisfactorily answers the concerns I expressed and the arguments I put, with all due respect to the minister. This is not a complex amendment; it is very straightforward. Unlike a lot of this legislation, it is a very simple, discrete amendment and a very simple, discrete issue. As always, there are arguments on both sides; however, it is pretty clear what the arguments are and it is very clear what the effects will be one way or the other. Unlike a lot of more complex areas we have been dealing with in respect of this legislation, where you are balancing a range of different competing interests and uncertainty about definitions and legal consequences, there is simply no question about the broadcast licence fee.

This is the only group in the community that are not able to have access to a fair market basis without any statutory restrictions on earning an income from their copyright. While I would not make the argument about why it is appropriate for the cap to be removed—as Minister Ruddock said, it was put in place in 1968 on the basis of special economic difficulties at that time—I do not quite remember the special economic circumstances that were faced by the commercial radio industry in 1968. I’m fibbing; I do remember those 78s, just before the LPs came in that Senator Ludwig referred to, so perhaps I’m about as old as he is but, whatever they were, they are certainly not present now. After the recent media reforms that were passed a few weeks ago, I do not think anybody would suggest that the commercial radio industry is facing economic hard times and that there is some reason why they should get special treatment, that there are some circumstances of the moment that would suggest they need to have this little reduction in costs—a reduction in costs, I might say, at the expense of Australian musicians.

The argument for removing the cap is very strong and very clear. It is a bit hard to make the argument, because the government itself has accepted it. Minister Ellison said that the cabinet has come to a decision on it. There is no indication, unless the minister wants to correct me, that the government has changed its decision, so why are we not doing it now? We all know the reality that this major package of copyright reform measures is a one-off. We know that it will be much more difficult to get a single, discrete, small piece of Copyright Act amendment legislation up before the next election. Indeed, the very argument that the department put at the Senate committee hearing as to why we had to deal with all of these measures now, rather than just deal with the ones to do with the free trade agreement that had to be through before the end of the year, was that the government wanted to make all of these changes as part of one total reform package. Well, you cannot have it both ways. If you want a total reform package, then let us have the total package. Why is this one element not in the package?

The minister said a number of submissions from affected stakeholders meant that further work was required. What is it that is required? What is the further work that is being done that could not be completed in time for the introduction of this legislation? Is the government changing its decision? If the cabinet decision stands, why are we not proceeding now with this change? I simply say that, whilst there is competing interest here, this is a clear-cut situation of who the interests are—it is that part of the commercial radio industry that relies a lot on playing music versus Australian musicians, performers and their record companies. They are the winners and losers here.

The simple fact is that, if the cap is removed, artists and performers and their record companies and representatives will be able to negotiate a licence fee with commercial radio as every other copyright user can do in all other areas of the Copyright Act. If no agreement can be reached, they can go to the Copyright Tribunal and determine a fair market rate, just as everybody else does. What possible reason can there be for this group within the Australian community, musicians and performers in particular, to have their incomes capped? Nobody is suggesting that talk-back hosts, who are another part of commercial radio expenses, have their incomes capped. Some people might like the idea of it, but nobody is going to suggest it. In effect, it means a subsidy, but commercial radio stations that play music are able to get their product at below market rates compared with that part of the commercial radio industry that does not generate that product predominantly from music. That in itself is a market distortion that I think is unfair.

So there are any number of arguments as to why the cap should be removed. It is a bit of extra special treatment for the commercial radio industry and is not one that I can see has any justification, particularly given that this legislatively imposed cap on the earning stream of copyright owners, musicians, performers and their record companies are the only groups in the community that this applies to. I really need to get some indication from the government. As everybody in this chamber would know, this remains an ongoing issue and one that has a lot of interest from a lot of people in the community. I think the least I can get is a clear idea of what is going on. The government said they made a decision six months ago. The minister said yesterday they have come to a decision. The decision has not changed. They need to get all the reforms through in one package. Here is the package. It is all before us. What is the problem?