As of Friday, the full bench of the Federal Court directed Optus to pull the service that rocked the media rights world of sports and threatened to derail any negotiations in relation to new media rights for events around Australia. The “TV Now” service allowed the consumer to direct Optus to record (copy) content for them directly from the broadcast so that they could watch it later on their computers, IPTVs and mobile devices. It particularly focussed marketing and advertising on the content broadcast of sports such as AFL and NRL, to which Telstra had paid millions of dollars for the privilege to broadcast. The initial decision on Feb 1 by Justice Rares was that Optus was not copying the content and therefore was immune to the claim from Telstra and the sporting codes. The Optus service was loosely referred to as analogous to a VCR recorder – merely providing the tools, but not actively breaching the reproduction rights of copyright owners protected under the Copyright Act 1968 (Cth). The Federal Court flipped the initial decision on its head and the sporting codes, the government gate-keeping the drafting of the Copyright Act and rights owners are rejoicing.
THE REPERCUSSIONS FOR THE COPYRIGHT ACT
This decision confirms the sanctity of the Copyright Act as applying to a new media rights situation, which many of its sceptics were waiting for as the day they could claim “we told you so”. It has withheld the test placed on it by this case and the content rights owners can rest easy… for now. It should be noted with emphasis that while Optus may not see the point in taking this matter further, there is still a High Court appeal option to again flip the decision and allow the Optus TV Now service back into the market. However, considering the potential net gain to Optus after a successful appeal from a business point of view and the public policy backing of the Federal Court’s interpretation of the Copyright Act, we think the decision from Friday is here to stay.
No doubt the lobbying for change to the Copyright Act (although not as strong as they were on Thursday) will continue to ensure new media rights created are protected from copyright breach.
The Copyright Act cannot however, rest easy. This test was in relation to one service in one particular set of circumstances. There will be others most likely coming from similar parties that were privy to this particular suit. The circumstances will be different, the technology will never have been seen before and the consumers will never expect it but the Copyright Act will need to stand strong and at the same time may need to adapt if obvious – which means the Attorney-General Nicola Roxon will need to be first there. Good luck Nicola!
WHAT IT MEANS FOR SPORTS AND EVENT PROMOTERS
The sighs of relief from sports governing body board rooms all over the country were in unison with the decision being handed down on Friday. Negotiations in relation to media rights value have been put on hold since the initial decision on 1 Feb and can now move ahead with their initial valuations in tact. The decision protects the negotiations of media companies like Telstra after valuing rights with AFL, NRL and paying for them assuming that there could be no reproduction and use of their content without the potential for a copyright breach. This decision also further squeezes the potential for services allowing reproduction of content to rely on the fact that merely providing the service does not invoke copyright breach in Australia – it moves them closer to infringing the Copyright Act.
DEVELOPMENTS TO WATCH OUT FOR…
It will be interesting to see whether online content owners will try and draw parallels from this decision and the Optus breach to those actions of ISP’s who are providing a service and who have been alleged to turn a blind eye to unauthorised reproduction on the webpages they host.
Also click here to see the BSE Blog post on the TV Now! original decision.
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
Matt Burgess, Director:
Phone: +61 405 722 739
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