By Mitch Herlihy and Gene Goodsell, Special Counsel
In today’s contemporary society, the rate of technological change is rapidly increasing. With such change, rightsholders are experiencing more and more problems protecting their intellectual property. Cloud computing is one such area of recent technological development. This is where a service provider, in this case Optus, offers customers storage and software services via a private or public network.
In the TV Now litigation, the NRL and AFL are aggrieved because Optus TV Now users can view free-to-air television broadcasts on a delay as small as two minutes. This is despite Telstra purchasing the exclusive rights to broadcast AFL matches over the Internet.
The outcome of this case is likely to have significant implications for cloud service providers in Australia. While recent US and Singaporean case law suggests a positive outlook for cloud service providers, this case provided an opportunity for the Australian courts to adopt or reject that approach.
On 1 February, Justice Rares of the Federal Court handed down his judgment and found that the Optus TV Now service did not infringe copyright laws by allowing users to record and later view AFL and NRL football matches on a mobile device.
Justice Rares found that the service itself did not infringe copyright “in the particular ways that the rightholders alleged”. The Football codes were ordered to pay Optus’ legal costs. This judgement will save the Optus TV Now Service, launched in July last year, from cancellation.
Justice Rares found that the user rather than the provider, Optus, made the recordings of free-to-air broadcasts when using the service. He said that, “it was substantially similar to the position where a person used a video cassette recorder, digital video recorder or similar device to copy a television broadcast”.
He went onto say that, “[U]sers of the service did not infringe the broadcasters’ copyright, as their use of the service fell within the time-shifting exception of the Copyright Act, allowing consumers to record a broadcast for later viewing of their choosing in private”. Though the recording could be watched with friends, Justice Rares found that this did not constitute a public viewing.
Representatives from the major sporting codes are currently lobbying the Government to have the Copyright Act changed. The idea behind this is to prevent rightsholders from losing revenue in circumstances such as the present one. The sporting codes may be seeking to have a general fair use exception introduced into the Copyright Act which would require the consideration of an exception on the copyright owner’s market. Such an exception would have made it difficult for Optus to have gotten away with playback on a two minute delay which undermines the market for exclusive rights to live broadcast of sports online.
This blog is for discussion purposes only. This must not be considered legal advice.
For legal advice on this topic and references to any information in this article, please contact Gene Goodsell, Special Counsel:
Phone: 1300 725 105
Connect with Gene on Linked In
Image Credit: janoon028
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