OPTUS TV NOW – FEDERAL COURT COPYRIGHT JUDGMENT
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. Tim Hemingway and Kelly Marshall
look at what this means for providers of cloud-based services in
Australia and where it leaves the 'time-shifting' exception
in Australian copyright law.
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
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
Re-transmission of free-to-air broadcasts in the context of
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
Submissions to the ALRC's Issues Paper are due 16 November
So, it's still a case of "wait and see". We will
keep you informed.
As a licensor or a licensee, here are some tips you should consider when negotiating your next licence agreement.
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