Earlier this year, Optus' TV Now subscription service was
suspended following a decision by the Full Court of the Federal
Court in Australia that its use infringed copyright in broadcasts
of NRL and AFL football games. We wrote about that decision in an
article published on our website on 30 April 2012.
Optus sought leave from the High Court to appeal this decision,
but the High Court has now refused to grant that leave on the basis
that there were insufficient grounds for an appeal to be granted
and that any such appeal would be unlikely to be successful.
In a year dominated by court battles demonstrating the tension
between technology and rights holders, the High Court's refusal
to grant leave brings to a close this particular saga. Optus will
now be unable to revive this service in its original form, and will
need to rely on a change to Australian copyright laws if it wishes
to do so.
In its decision, 1 the Full Court of the Federal
Court noted that it was simply applying the law and wording of the
Copyright Act as it stands, and that if public policy desired a
different outcome, then the legislation would need to change to
give effect to that outcome.
Rather timely, the Government has recently appointed the
Australian Law Reform Commission (ALRC) to enquire
into, and report on, current and further desirable uses of
copyright material in the digital economy. This stems from the
Government's objective to ensure that copyright law provides
incentives for investment in innovation and content while also
allowing appropriate access to that content. The digital economy is
seen as an important part of Australia's economic growth and
social wellbeing, and the Government wishes to ensure that new
opportunities within the digital economy are encouraged ahead of
the National Broadband Network rollout.
The ALRC's enquiry asks for feedback in relation to a number
of current issues that are fundamental to the arguments we are
seeing in the Australian Courts, as old copyright laws are applied
to new technologies. The legal issues considered by the Full Court
relating to the time shifting exceptions in the Copyright Act, and
the private online use of material, form part of the ALRC's
The ALRC's final report is not, however, due to be delivered
until 30 November 2013, so these issues are unlikely to be settled,
and any necessary legal reforms introduced, for some time.
In the meantime the Australian Courts are bound to apply the law
as it currently stands, so providers of online storage and cloud
computing services in Australia will need to show caution when
dealing with copyright material on behalf of their customers.
1 National Rugby League Investments Pty
Limited v Singtel Optus Pty Ltd  FCAFC 59.
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