Rights-owners scored a win in the Full Federal Court on Friday,
with the Court finding Optus' TV Now recording service
infringed the AFL's and NRL's copyright in their sports
broadcasts. As a result, providing similar services will be very
difficult to do lawfully, although in theory not impossible.
(National Rugby League Investments Pty Limited v Singtel Optus Pty
Ltd  FCAFC 59).
How does TV Now work?
Optus' TV Now service allows subscribers to nominate free to
air TV programs to be recorded. These recordings are stored on
Optus' cloud storage platform; customers can stream the
recorded programs to their devices for viewing on any one of four
compatible devices: PCs, Apple devices, Android devices and 3G
The Australian Football League and National Rugby League
partnership own the copyright in broadcasts made on free to air
television of games played between teams in their respective
competitions. They granted Telstra an exclusive licence to
communicate, by means of the internet and mobile telephony, free to
air broadcasts of live and pre-recorded AFL and NRL games.
The legal question: did Optus infringe
Telstra and the sports organisations argued that Optus infringed
their copyright by making unauthorised recordings of their sports
broadcasts and then made unauthorised communications of those
recordings to Optus customers.
Optus contended that it was their users (not Optus) that made
the recordings. As the customers made the recordings for their own
private or domestic use, the playback fell within the time-shifting
exception in section 111 of Copyright Act 1968 (Cth) and did not
The primary judge agreed with Optus; the Full Federal Court
Why the Full Federal Court said Optus infringed
The first issue was this: who made the recording?
The Full Federal Court said that it clearly wasn't just the
subscriber. Whether it was Optus alone, or in conjunction with the
subscriber ultimately didn't matter, because either way Optus
still had responsibility for the making of the recording. It set up
the system, sold the service, used the system to record the
program, stored the recording, and streamed it on demand.
Could Optus then claim the protection of section 111 on the
basis that the recording was for a subscriber's private or
domestic use? The subscriber might be able to, but Optus can't.
That's because the section doesn't say anything about
commercial copying on behalf of individuals.
Where to now for TV Now and similar
This is not the death-knell for similar services, but it is a
serious blow. The Full Federal Court emphasised that this decision
only applied to the particular technological arrangements used by
Optus, and other arrangements might not lead to the same result.
What arrangements those might be will no doubt tax the minds of the
While it's a significant victory, we're still only
half-way through the season – Optus may well seek special
leave to appeal to the High Court. There is also the possibility of
reform to the Copyright Act. If, as Optus argued, the original
intent of section 111 was to protect anyone who made a
time-shifting recording for private or domestic uses, then that
intent is not reflected in the section now.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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