news The full bench of the Federal Court has ruled that Optus’s TV Now online television recording service is in breach of the Copyright Act, in the next stage of a closely watched lawsuit seeing the National Rugby League (and eventually the AFL and Telstra) pitted against the telco for its attempt to make TV broadcasts more readily available to customers online.
The Optus TV Now service allows customers to have free to air television programs recorded when broadcast, using Optus’ centralised systems, and then played back at the time of a customers’ choosing on their Optus mobile device or PC. This technique is known as “time-shifting”, and attracted the legal ire of the NRL and other groups such as the Australian Football League, which had granted Optus rival Telstra an exclusive licence to make their broadcasts available online.
Late in 2011, Justice Steven Rares of the Federal Court had found in Optus’ favour in the case which the telco had filed against the NRL (later joined by Telstra and the AFL), stating that Optus’ technology was similar to recording a TV show using a video recorder in a loungeroom. However, in a new judgement after an appeal, the full Federal Court found today that Optus’ technology could not come under the auspices of the Copyright Act.
In its judgement, available online here, the Federal Court wrote that there were two issues at the heart of the case — who recorded the TV shows, and if Optus’ act in recording the device constitutd an infringement of the copyright of the NRL, AFL or Telstra, could Optus invoke the “private and domestic use” defence under Section 111 of the Copyright Act, which allows limited recording of content for personal use.
The initial judgement had found that customers made the recording. “Ours is a different conclusion,” wrote the full Federal Court. “The maker was Optus or, in the alternative, it was Optus and the subscriber. It is unnecessary for present purposes to express a definitive view as between the two. Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected.”
“Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying. That is our preferred view.”
Following on from this determination, the court found that Optus could not use the Section 111 defence under the Copyright Act.
The case has been viewed as a test of such services in Australia. However, the Federal Court warned against taking its implications too broadly. “We should emphasise that our concerns here have been limited to the particular service provider-subscriber relationship of Optus and its subscribers to the TV Now Service and to the nature and operation of the particular technology used to provide the service in question,” it wrote. “We accept that different relationships and differing technologies may well yield different conclusions to the “who makes the copy” question.”
Optus has reportedly suspended the TV Now app. It is unclear yet whether the telco will appeal the issue.
The weight of public opinion (at least in the technology community of which I am a part of) appears to be clearly behind Optus on this one. People want more options to view the content that they love and all Optus was doing in this case was giving them these options. Why should we be locked in to using a Telstra connection if we want to use the Internet to watch NRL or AFL games? The answer: Ideally, we shouldn’t.
However, as far as I can see, the Federal Court made the right decision here, on the basis of the information which it had and the available legal structure currently in place.
The reason I feel this way is that it would be much, much more efficiently technologically if Optus didn’t record every free to air broadcast that each of its consumers requested, but instead simply recorded all free to air broadcasts by default and then provided them on-demand style to consumers. I’m sure this is the way the Optus TV Now system would end up working, if it doesn’t already. You don’t want to record every AFL game ten thousand times for ten thousand consumers. You want to record it once and then provide that copy to each consumer.
This style of system goes beyond the personal use doctrines in the Copyright Act, because it becomes a systematised method for Optus to make money using other people’s content. And that, I think, is what the Court has found today, accurately. It’s not a bad thing to record a few shows for personal consumption. But when a major corporation starts recording, eventually, thousands of shows it doesn’t own and providing them on-demand to subscribers, that goes too far — even if the ads are still included.
What I would like to see, which I don’t think we have seen yet in Australia, is some deeper thinking around what copyright could and should look like in 2012 and beyond. Clearly Optus is trying to provide a service which consumers want, and just as clearly, legislation is prohibiting it from doing so. Innovation is being stifled here, by the law. And that’s never a good situation.
We have a good chance to do just this through the review currently under way into the digital sections of the Copyright Act. Let’s hope we get some good submissions and some good deep thinking in that process. And, above all, let’s hope that the Attorney-General’s Department steers Australia through the right path in that vein.