As the Government looks to finalise its
Convergence Review next month, the enormity and complexity of
the task of regulating media and content services in a converged
environment was thrown into sharp relief by the Federal Court's
recent decision in the Optus "TV Now" case.
The Optus "TV Now" service essentially allows users to
record and watch free-to-air television broadcasts on a
"near-live" basis. In a decision that has outraged sports
rights-holders and surprised television broadcasters, the Federal
Court held that the "TV Now" service does not infringe
copyright in the original terrestrial television broadcast of
certain football and cricket matches and for which Telstra owned
the exclusive internet rights. Optus was able to rely on the
time-shifting exception to copyright infringement in section 111 of
the Copyright Act 1968 (Cth), which permits an individual
to make a recording of a broadcast for their private and domestic
use at a more convenient time.
The TV Now service acts as a virtual personal video recorder, or
PVR, and was found to be analogous to the physical version of the
PVR sitting alongside most television sets in Australia, the use of
which is legal under the time-shifting exception in the Copyright
Act (subject to certain conditions).
In addition to providing the Court's interpretation of the
time-shifting exception in the age of ubiquitous cloud service
offerings by telcos, the decision has serious implications for
rights-holders; the commercial value of live-streaming internet
rights (including live mobile rights), in terms of the ability to
sell those rights separately from the television broadcast rights
is greatly decreased. (See
Corrs in Brief: Optus vs NRL – a silver lining for cloud
based services? for further detail)
Television and radio broadcasters will not want to pay a premium
for live broadcast rights if the event or content is available on
another platform on a near-live basis; it is the exclusivity of the
broadcast that attracts advertising spend and sponsorships, the
life-blood of free-to-air broadcasters. This will have a serious
impact on the fees flowing back to rights-holders such as sporting
associations if the current commercial models and the bundling of
rights is not updated.
Some may argue that in a converged environment and where we will
shortly have a fast-speed National Broadband Network, free-to-air
television rights and live-streaming internet rights (whether the
content is received on a PC or mobile device) will become one and
the same (to the user). But the commercial models used by rights
holders, particularly sports rights holders, are not at this point
yet. To get to this point, sports rights holders would need to
undergo a similar seismic shift to that of the music and film
industries in the wake of P2P file-sharing and the age of iTunes,
which lead to a dramatic change in how music and films are
commercialised and distributed.
An appeal to the Full Federal Court is under way and the
Attorney-General, the Hon Nicola Roxon MP, has launched an inquiry
by the Australian Law Reform Commission into copyright laws. The
ALRC is expected to release terms of reference by the end of
The Optus TV Now decision is a clear example of why the law (not
only broadcasting regulation, but copyright and related laws) needs
to be reviewed and thoughtfully updated to reflect the technology
and user realities of the converged environment. Not an easy
We will be closely following the ALRC's Copyright Inquiry
and eagerly await the Convergence Review Committee's final
report to Government, which is also due in March 2012. Any review
of the time-shifting exception and other provisions of the
Copyright Act will need to be considered hand-in-hand with the
recommendations of Convergence Review Committee in order to deliver
an effective and fair solution for rights-holders, broadcasters and
the public alike.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).