The Federal Court has today overturned a previous decision that found Optus’ TV Now service not in breach of copyright by showing the matches on free-to-air on a short delay of two minutes. It now means that it will most likely go to the High Court for a final decision.
The three judges have noted two areas that the appeal will be looking at: first was who was the maker of the footage being recorded. The previous court decision allocated the maker to the subscriber to the Optus TV Now service – the appeal court, however, saw a different conclusion.
It said, “the maker was Optus or, in the alternative, it was Optus and the subscriber.”
“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,” it continued.
The second point in contention was if Optus’ act constitutes as infringement, could Optus invoke the “private and domestic use” defence in the Copyright Act. The original judge did not rule due to his answer on the first question above. The appeal court found that if Optus was the maker – either alone or with the subscriber – it would not be able to use this defence.
Telstra and the AFL has welcomed the decision. A spokesman for Telstra said, “It’s vindication for Telstra and the sporting bodies who have negotiated content rights and what it means is the certainty for the content providers and sporting bodies in their incomes.”
The AFL‘s CEO Andrew Demetriou told 3AW that it is “a great win” and a sensible decision.
“Optus must now suspend offering a service they didn’t pay for,” he said. “[Telstra] charge $50 for the whole season, while Optus was trying to jump in and not pay for it.”
The landmark decision by the court – before it was overturned today – was seen by many media analysts as making multi-million (and for the AFL, billion) exclusivity rights to broadcast the games online and on television worthless. Telstra joined the lawsuit in order to protect its exclusive deal with the AFL and NRL.
The decision also saw calls for copyright reform – and with AFACT crying foul after the High Court rejected its appeal in its iiNet court case, we could potentially see the Government acting on those calls. And while copyright law should be updated to meet new technologies, it should go overboard like SOPA in the United States or force other companies to do the policing, as opposed to the judicial system.