Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I, too, rise to speak on the Copyright Legislation Amendment (Fair Pay for Radio Play) Bill 2023. The coalition does not support the bill at this time. Our fear is that the bill proposed by Senator David Pocock would have immediate and adverse unintended consequences for commercial radio stations, especially in remote and rural areas. The potential second-order impacts on our commercial radio landscape in general and remote and regional stations in particular mean that this is not a bill that we can support.

What the bill actually does is overturn a rule that has been in place for 55 years. It is a very simple rule, and what it says is that if you are a radio station and you play songs covered by copyright then you must pay a fee, but the fee itself is capped. What the bill before the Senate does is remove those caps. Based on the available evidence, we are not confident in relation to what is proposed that the benefits of that change outweigh the risks that we have articulated.

It's worth spending a few moments reflecting on what copyright is, because copyright is an unusual concept to the extent to which it directly influences a range of economic relationships. Copyright, as many will know, is a form of property. It's not tangible, so you cannot hold it in your hand. Rather, it is a bundle of economic rights that allow a person to benefit from material that they themselves have created. It is a form of statutory recognition of the value of a person's creative labour and their artistic skill. It protects the original form or way an idea is expressed. It doesn't protect the idea itself. It is not the musical chord or the word or concept that is protected; rather, it turns artistic expression into something of tangible economic value and it gives authors and performers non-economic rights—rights that we usually refer to as moral rights.

In Australia, when we speak about moral rights we mean the right of integrity, the right of attribution and the right against false attribution. Again, it is the law stepping in to ensure the value of creative endeavours is respected by protecting the integrity and inherent value of artistic expression. Copyright law itself is hugely important because it is part of the bedrock on which our creative industries are built on in our great country. It recognises value and, when we talk about value, it recognises both the economic and moral value in the labour of our writers and our musicians and our creative workers. Importantly, it is fundamentally a creature of statute.

Copyright exists in Australia in its current form because successive governments have recognised the interest that we all have in protecting creative labour. But, as is always the case, the interest itself does not sit in isolation. It exists in balance and in tension with other rights and interests. For example, the right to prevent unauthorised distribution of your creative expression—one of the fundamental tenets of copyright—is in tension with free speech. As a society we have collectively arrived at the position that it would be inappropriate to allow an artist's economic interests to stifle the exchange of ideas. To do so would be antithetical to our democracy. That is why our copyright law includes exceptions to copyright infringement for things like news reporting, review and satire. Of course, there are other areas where a balance must be struck between the protection of copyright and competing interests. One of those competing interests is in the interest that we all have in encouraging a vibrant media landscape. That is the interest that is affected by the bill that we have before us in the Senate.

The balance between encouraging a healthy media landscape and the protection of artistic endeavour is at the heart of this bill. So let's look at the provisions that this bill would actually affect. If passed, this bill would repeal just four subsections in section 152 of the Copyright Act. On the surface, if you just look at the bill and what's being presented, these changes themselves appear to be straightforward. But they have essential work to do. Fundamentally, the four subsections, which would be repealed if this bill was passed by the Senate, set caps on the fees that radio broadcasters must pay for playing sound recordings. There is a cap that applies for commercial radio licensees which is set at one per cent of gross earnings for commercial radio stations. And there is a cap set for sound recordings played by the ABC which is set at 0.5 cents per head of population.

Broadly speaking, as I stated in my opening remarks, those caps have been in place since the Copyright Act was passed, and that is now 55 years ago. The simple reason that the caps have been in place for such a long period of time is because they play an important balancing role between competing economic interests. The caps take into account the balance between the direct economic interests that artists have in profiting from radio play and the broader economic benefit that those artists derive from radio play. That, of course, is a very complex balance. The act could have said, when it was first drafted, that no fees are payable. Doing so would have reflected some implicit judgement that radio play is economically neutral. That is, the economic cost that comes with the nonpayment of copyright fees is offset by the broader economic benefits to the copyright holders. But instead, by imposing caps, the Copyright Act strikes the balance in a way which says the artist must have some right to benefit directly from radio play.

One reason for that is that we as a society recognise that there is a second competing interest in play here: the interest in promoting Australian music. We advance the interest through Australian music quotas. The commercial radio code of practice, developed by the industry with the Australian Communications and Media Authority, sets Australian music quotas for commercial radio broadcasters. This is a matter that was inquired into by the House Standing Committee on Communications and the Arts, only just in March of 2019. We know from that report that many who are covered by the code do not see content quotas as a form of forced supply. Rather, they recognise that the analogue and digital spectrum of Australia is limited. For them, meeting Australian music quotas is an obligation that is inherently required to meet, to gain access to a finite public resource, and to use it to offer a commercial radio service. But crucially, the obligation to play Australian music is balanced by the cap on the fees payable. The caps go hand-in-hand with Australian music quotas.

So in terms of the impact of the removal of the caps, which is what this bill proposes to do, our concern is that the removal of the caps would strike at the critical balance in the world of commercial radio. They would upend the delicate relationship between the obligation to play Australian music and the obligation to pay for it. At its heart, the purpose of removing the caps is to allow the fees to go up. In the current environment, with all of the competitive pressures that commercial radio stations face from digital platforms, a sudden increase in costs risks creating significant unintended consequences, and we are cautious about changing those relationships. Our concern is that, if the bill were to pass, those consequences would be immediate and adverse because what you risk is a sudden unanticipated increase in the operating costs associated with playing Australian music.

In particular, our concern—and I know Senator Davey will elaborate on this in more detail—is in relation to what happens in remote and regional areas. Roughly 220 of the 260 commercial radio stations across Australia are in remote and regional areas. It is in the interests of all of us to set the conditions for those radio stations to continue their operations because they provide vital services for the community. They can be a hyperlocal platform that brings locals together in a way that is simply not possible on any other medium, and that is reflected in the local content and present rules that apply to regional commercial radio stations. We all know what happens in remote and regional areas when you impose a sudden cost on a service. It is very simple, unfortunately. There's a very immediate impact: it closes. We can see and we have seen that happen time and time again.

Our theory on this side of the chamber is that the second-order impact of this bill would be to drive the closure of commercial radio stations in remote and regional areas. What this bill unfortunately does, despite what Senator Pocock is trying to do through this bill—and I understand what he is trying to do—is the bill would adversely affect every commercial radio station across Australia. The 85 per cent or so of Australian commercial radio stations that are in rural and regional areas will feel that pressure acutely. You risk losing the bits in between the music. The hyperlocal content that tells you about the school fete or the local shops is then put at risk, and, instead of a local radio station, our fear is that radio stations would increasingly end up with syndicated content coming out of our big cities. Quite frankly, that is just not acceptable.

As I stated, the coalition is unable for those reasons to support this bill. The bill creates economic risks for commercial radio, especially, as I have said, in rural and regional areas. But we are acutely conscious of the risk of second-order impacts on communities, particularly for remote and regional communities that benefit from those stations. So, at this point in time, on all of the available evidence, it is not a risk that we are prepared to take.