Copyright law in Australia is faced with significant challenges
grappling with "tectonic shifts" in cloud technology,
according to legal experts.
The claim comes after the High Court refused to hear Optus'
appeal against an earlier Federal Court decision that said its
rebroadcasting of live sports through its TV Now service
On 7 September, the High Court agreed with the Federal
Court's ruling in April that Optus had breached copyright laws
by broadcasting "near live" sports games.
The decision represented a win for the AFL, NRL and Telstra
against the original Federal Court ruling that allowed Optus
customers to use the TV Now service to record matches and view them
on their PCs, telephones and other devices.
Both the AFL and NRL have exclusive internet broadcast rights
Optus argued TV Now conformed to section 111 of the
Copyright Act, which allows people to record programs for personal
use and won the initial Federal Court case in February.
Critics of last week's High Court ruling are now calling for
the modernisation of Australia's copyright laws to keep pace
with shifting technology.
"It's inarguable that we're going through a
tectonic shift in the way cloud services operate ... the way
they're becoming ubiquitous," said Baker & McKenzie
partner Andrew Stewart (pictured), who acted for Optus.
"If copyright law is going to continue to fulfil its proper
function in striking a balance between owners and users, this is
one thing it really needs to grapple with.
"Those considering these cases have to take into account
these fundamental changes."
The head of Truman Hoyle's technology practice, Hamish
Fraser, described the decision as "an unfortunate
"What is interesting is that we're left with an
unfortunate outcome ... in that the all the recent attempts to make
copyright law technology neutral have failed."
In April, the Government released its 2012 Convergence
Review, which recommended a technology neutral approach to
policy and law that will incorporate new services, platforms and
The Australian Law Reform Commission (ALRC) is currently
reviewing copyright exceptions, including those that apply to cloud
computing, but the release of the final ALRC report on copyright is
not due until November next year.
Despite the High Court decision, Optus and technology experts
could pursue the matter through the ALRC review, which they believe
may eventually lead to reform of existing copyright law to cater
for cloud technology.
King & Wood Mallesons (KWM) partner Maurice Gonsalves, who
acted for the AFL and Telstra, said he was pleased with the High
Court outcome, which he said "confirms the ability of a
copyright owner to control commercial exploitation".
"I really think that the case was not so much about
consumer rights; it was about whether a commercial organisation
like Optus should be permitted to offer a service, which
essentially involves making a recording of copyrighted material,
without the permission of the copyright owner," he added.
In the High Court, KWM instructed barristers David Catterns QC
and junior counsel Patrick Flynn, while Tony O'Reilly from
Kennedys acted for the NRL, instructing barristers Noel Hutley SC
and junior counsel Neil Murray. The barristers instructed by Baker
& McKenzie for Optus were Richard Cobden SC, John Hennessy SC
and junior counsel Nicolas Smith.
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.
As a licensor or a licensee, here are some tips you should consider when negotiating your next licence agreement.
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).