Provisions of the Broadcasting Services Amendment Bill 1998
Minority Report By ALP Senators
Senator Mark Bishop
Senator Nick Bolkus
INTRODUCTION
Opposition members of the Committee agree in principal with the basic
framework adopted by the Government for dealing with the issues of anti-hoarding
and a retransmission regime for subscription television operators.
In general terms, however, we are not satisfied that the Government has
gone far enough towards ensuring certainty for all parties.
This report will address two of the three major elements of the Bill:
anti-hoarding and retransmission.
ANTI-HOARDING
Opposition members of the Committee support the introduction of a "must
offer" regime in relation to the purchase and broadcast of exclusive
rights by commercial television networks.
Timely Procedures
Opposition members share the concerns of both the ABC and the Australian
Subscription Television and Radio Association (ASTRA) that the extent
or limit of the 'offer time' (time within which a free-to-air broadcaster
must make unused material available to the National Broadcaster) is not
clearly defined.
Timely procedures are essential for the anti-hoarding regime to work
in practice.
We suggest that a minimum offer time of at least 30 days prior to the
scheduled commencement of the event or series of events, be fixed.
Furthermore, in the interests of greater certainty, we recommend that
the National Broadcasters be required to accept or reject an offer from
a commercial broadcaster within 7 days of the offer being made.
Recommendations:
- That clause 146C (4) be amended to require that the 'offer time'
is, wherever possible, at least 30 days before the event, or series
of events is scheduled to commence. The Minister would retain a discretion
to extend the minimum period in exceptional circumstances.
- That the ABC and SBS (the National Broadcasters) be required to
accept or reject an offer from a commercial broadcaster within 7 days
of the offer being made.
RETRANSMISSION
Dispute Resolution and Transitional Arrangements
Opposition members of the Committee support the introduction of a "consent"
regime in respect of the retransmission of free to air broadcast signals
by subscription television (Pay TV) and other non-self help transmitters.
We agree with the view that commercial broadcasters are entitled to compensation
for the exploitation of their broadcast signal.
However, we are concerned to ensure that arrangements for the consensual
retransmission of free to air broadcast signal are reached in a timely
manner and upon fair and reasonable terms.
We are concerned that no provision has been made in the Bill for dispute
resolution or mediation in the event that a fair and reasonable and timely
commercial agreement as to terms and conditions for retransmission cannot
be reached between the parties.
We are concerned further that there are no explicit arrangements in the
Bill for ensuring that said agreements are in place prior to Proclamation
of Schedule 3 of the Bill.
We do not accept the view expressed by the Chairman in the Majority Report
that the parties should be left to reach an agreement without "interference"
from a third party arbitrator. Nor do we accept that a review of the proposed
arrangements in 12 months time would be sufficient to overcome any difficulties
caused by the absence of such an arbitrator.
Opposition members believe it is crucial that an arbitration mechanism
be in place from the outset. A practical prohibition on retransmission
in the absence of an agreement between the parties would be deleterious
for Pay TV subscribers and outside of the stated objective of the proposed
legislation.
Recommendations:
- That the Copyright Tribunal be appointed as Arbitrator in the event
that a timely commercial agreement as to the terms and conditions for
consent to retransmit cannot be reached between the parties.
- That the Copyright Tribunal be empowered to intervene where a timely
commercial agreement cannot be reached between the parties or where
an agreement has not been reached prior to the Proclamation of Schedule
3 of this legislation.
- That the Copyright Tribunal be empowered to determine what are
fair and reasonable conditions for consent to retransmit, including
determination of a fair and reasonable payment for retransmission.
- That the Copyright Tribunals findings are binding.
Scope of the Legislation - Compensation of Underlying Copyright Holders
We note that it is the intention of the Government to introduce complementary
amendments to the Copyright Act in regard to the issue of payments to
underlying Copyright holders.
We agree with the Retransmission Coalition, the Federation of Commercial
Television Stations (FACTS) and ASTRA that the issue of Copyright for
the retransmission of the free to air television signal should have been
addressed in its entirety and not in a piecemeal fashion.
We urge the Government to move quickly to address the issue of compensation
for holders of the underlying copyright in material re-broadcast by subscription
television (Pay TV) or other non-self help transmitters.
Enforceability
We acknowledge the concerns of the Federation of Commercial Television
Stations (FACTS) that until the proposed amendments to the Copyright Act
are achieved there is no redress for commercial networks for breach of
consent arrangements under Schedule 3.
Once again we urge the Government to move quickly to bring forward
its foreshadowed amendments to the Copyright Act to properly address this
issue.
RECOMMENDATIONS
Anti-Hoarding
- That clause 146C (4) be amended to require that the 'offer time'
is, wherever possible, at least 30 days before the event, or series
of events is scheduled to commence. The Minister would retain a discretion
to extend the minimum period in exceptional circumstances.
- That the ABC and SBS (the National Broadcasters) be required to
accept or reject an offer from a commercial broadcaster within 7 days
of the offer being made.
Retransmission:
- That the Copyright Tribunal be appointed as Arbitrator in the event
that a timely commercial agreement as to the terms and conditions for
consent to retransmit cannot be reached between the parties.
- That the Copyright Tribunal be empowered to intervene where a timely
commercial agreement cannot be reached between the parties or where
an agreement has not been reached prior to the Proclamation of Schedule
3 of this legislation.
- That the Copyright Tribunal be empowered to determine what are
fair and reasonable conditions for consent to retransmit, including
determination of a fair and reasonable payment for retransmission.
- That the Copyright Tribunals findings are binding.
We urge the Government to move quickly to address the issue of compensation
for holders of the underlying copyright in material re-broadcast by subscription
television (Pay TV) or other non-self help transmitters.
We urge the Government to move quickly to bring forward its foreshadowed
amendments to the Copyright Act to properly address this issue.
Senator Mark Bishop Senator Nick Bolkus
ALP Senator for WA Senator for SA
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