In February 2012, we asked "Did Telstra pay $153 M for nothing?"
On 27 April 2012, the Full Court of the Federal Court said "NO" and overturned Justice Rares' earlier decision finding that the Optus TV Now service infringed the copyright in the broadcasts that it recorded.
By way of a refresher, the decision concerned the Optus TV Now service which allowed Optus customers who subscribe to the service to record free to air TV.
Justice Rares initially found that the TV Now service provided the same service as that of a personal video recorder and that as a result the customer, not Optus, had "made" the recording and there was no copyright infringed.
The Full Court of the Federal Court in overturning that decision also focussed heavily on who "makes" the recording and found that, although the end user does, Optus also makes the recording in that it "designed and maintained a sophisticated system which can [make] recordings".
It is likely Optus will seek leave to appeal the matter to the High Court and if leave is granted a High Court appeal must then be heard before there can be any judicial certainty around this topic.
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