The Full Federal Court has decided in favour of the NRL, AFL and Telstra in the ongoing litigation that had pitted Optus against the two sporting bodies and Telstra.
Finn, Emmett and Bennett JJ’s decision held that:
– The maker of the recorded broadcasts was either Optus alone, or Optus and the TV Now user – with Optus and its users jointly and severally liable;
– Following from this – Optus couldn’t then rely on the section 111 “time shifting” provision in its defence.
Background to the litigation
The Copyright Act contains an exception allowing TV broadcasts to be recorded for watching at a later time in a private or domestic context (often referred to as “time-shifting”). This litigation is the first to tackle the question of whether firstly, it is legal for these recordings to be made on equipment operated by and located with a commercial third party and secondly, whether it is legal for these recordings to be stored on a cloud service operated by a commercial third party.
In August 2011, Optus launched its “TV Now” service, which lets users record free to air TV programs using Optus’ servers and store these recordings on Optus’ cloud. A user can then stream recorded programs to his or her devices (such as a mobile phone or computer). Users are given a limited amount of free recording time and can pay to have more. A user can only view a program that he or she has recorded – not other users’ recordings. Recorded programs are deleted after 30 days.
These recordings include NRL and AFL matches broadcast on the free to air networks. Optus’ rival, Telstra, had earlier signed a deal worth $153 million with the AFL for the exclusive online broadcast rights to AFL matches. Optus’ TV Now service effectively lets Optus offer a similar service – but without having to pay the AFL for the rights. After rumblings about the legality of the service and potential legal action, Optus took the matter to the Federal Court with the aim of having the service declared legal.
The key issue before the court at first instance was whether Optus’ service fell within the scope of the “time-shifting” exception. Rares J decided in Optus’ favour, which led to the NRL, AFL and Telstra appealing to the Full Federal Court. Additionally, Screenrights, (which administers the retransmission scheme) was granted leave to intervene as amicus curiae and made submissions at the appeal hearings. Our detailed analysis of the first instance decision can be read at http://copyright.org.au/news-and-policy/details/id/2045/
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For inquiries relating to publishing and copyright law please contact Adam Simpson.