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.

Back­ground

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.