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Oz High Court says streaming music is not a 'broadcast'

Waves away Big Radio's royalty-free streaming bid

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Commercial Radio Australia (CRA) has been denied permission to appeal to the High Court in an attempt to overrule decisions in lower courts that will force it to pay twice for music it broadcasts – once for over the air and another for simultaneous internet broadcast.

The case over just how radio broadcasters should pay for music used in their internet streams has burbled along for years. The Phonographic Performance Company of Australia (PPCA) has sought two royalty payments, arguing that the net and the airwaves are separate media and therefore deserve separate payments.

The PPCA did so because its role is to generate revenue for recording artists by getting those who play their music to pay for the privilege. The organisation offers licences for radio stations, but also for shops, fitness classes and other places where music forms part of the background noise.

The CRA represents radio stations who, like all media in these days of “the Google at my ad revenue”, prefer to keep spending under control. The CRA therefore liked the idea of paying once for music even if its member stations used it on the air and online. That argument won the approval of Australia's Federal Court last year, but was subsequently overturned on appeal.

Australia's High Court is the nation's ultimate tribunal, but before one can appear before it many applicants must seek leave to appeal in a kind of pre-trial that tests whether the case is covered by the Court's jurisdiction. CRA failed that test, meaning the Federal Court stands and its members are bound to negotiate two licences with the PPCA.

The Court's thinking on the matter was that under Australia's Copyright Act a live stream is not a broadcast. That nicety means a new licence is justified.

The PPCA says ((PDF) that's a tremendous idea in part because it busts the one per cent of revenue cap on license fees radio stations pay to play music. The CRA has not issued a statement about the decision, but broadcasters hoping to cash in on internet radio now know they have an extra cost to consider.

The decision may be felt by podcast listeners as The Australian Broadcasting Corporation (ABC) excises music from podcasts that reply programs first broadcast over the airwaves. The ABC and other broadcaster+podcasters now have clear guidance on what they need to do if they wish to add music to future downloadable programs. ®

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