20 November 2012 Watching the footy from the cloud


Optus TV Now – Federal Court Copyright Judgment Stands

In brief

Optus' footy wars over its 'TV Now' service have been brought to an end with the refusal of its application seeking leave to appeal to the High Court. Our Commercial and IP & Technology Team looks at what this means for providers of cloud-based services in Australia and where it leaves the 'time-shifting' exception in Australian copyright law.


TV in the cloud: In our previous article "Footy Wars Continue: Optus' Win Reversed By Full Federal Court" we looked at the full bench of the Federal Court of Australia which overturned the Court's first instance decision relating to Optus' cloud based 'TV Now' service. The TV Now service made digital recordings (in numerous formats to suit a range of devices) of broadcasts of football matches which customers could access and view at a later time. Australian football codes complained that this was a breach of copyright. Optus' defence relied on the 'time-shifting' exception under the Copyright Act, which permits a copy of a broadcast to be made for private or domestic use for viewing at a more convenient time.
Breach of copyright: On appeal by the football codes, the Full Federal Court found that the TV Now service infringed copyright in the broadcasts. The TV Now service made numerous recordings in different digital formats and allowed customers to nominate the recordings for reproduction on the customers' device for subsequent viewing. The 'time shifting' exception did not apply – quite apart from the question of whether customers made copies for private use, it was found that Optus itself made copies for commercial purposes without the copyright owner's permission.
Following this decision, Optus applied to the High Court seeking leave to appeal.  The High Court refused Optus' application.

Leave refused. So where does that leave us?

Well, this means that the decision of the Full Federal Court is the current leading authority.  However, as previously reported the matter was very specific to the particular facts and circumstances of the case so its application is likely to be limited to commercial reproduction of broadcasts for subsequent access and use by end users on a time-shifted basis using technology like that used by Optus.

Technological neutrality – a hot topic, right now

Amongst other things, the decision throws up the issue of technological neutrality - a manufacturer can sell a recording device with which the user can select and record a broadcast to watch at a more convenient time, but a service provider cannot offer a cloud-based technology solution like TV Now to achieve a similar result.  
Technological neutrality is a very hot topic at the moment, particularly with the Convergence Review being released earlier this year and the Australian Law Reform Commission's (ALRC) Issues Paper 'Copyright and the Digital Economy' released in August.
The ALRC's review looks squarely at these very issues and the diverse interests of mobile smart device holding consumers wanting access to content on the one hand, and copyright owners who want to earn licensing revenue on the other. The review poses questions regarding:

  • Re-transmission of free-to-air broadcasts in the context of internet technologies

  • Whether it matters who makes a copy of a broadcast if it's ultimately for private or domestic use

  • In addition to private and domestic use, use of copyright material in social media

  • Expanding the limited subject matter to which the 'format-shifting' exception applies

  • Whether the drafting of the Copyright Act is sufficiently technologically neutral to deal with developments in internet and cloud technologies

Submissions to the ALRC's Issues Paper are due 16 November 2012.
So, it's still a case of "wait and see". We will keep you informed.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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