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(OR RATHER “TV NOT NOW”)
THE LATEST FROM AUSTRALIA AND
THE UK POSITION ON TIME-SHIFTING
TV NOW
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18
Insight
In a victory for rights owners, the
National Rugby League (NRL), the
Australian Football League (AFL) and
the Telstra Corporation (Telstra) have
succeeded in their appeal to the Full
Federal Court of Australia against
Singtel Optus (Optus).
BACKGROUND
Optus, a leading provider of mobile
phones and competitor to Telstra,
devised a subscription service called TV
Now, which permitted its subscribers to
have free to air television programmes
recorded as and when the programmes
were broadcast and then play them
back at a later time on a compatible
Optus mobile device.
Optus designed the TV Now recording
system to ensure that the recording
of programmes was initiated by
subscribers. If a user wished to
record a programme, the user would
initiate the recording by clicking the
“record” button for that programme
in the service’s electronic program
guide. The system would then record
the program in four different formats
(i.e. one each for PCs, Apple, Android,
and 3G devices) which resulted in four
copies of each broadcast for every
user of the TV Now service who clicked
“record”. All four copies were stored
in Optus’ data centre which allowed
subscribers to view the recording at a
later time and on the particular device of
their choice. Subscribers had a 30 day
period following the original broadcast
in which to view the recording.
The AFL and NRL claimed the TV
Now service infringed their copyright
in the broadcasts of the games in their
respective leagues. Both the AFL
and NRL granted exclusive licences
to Telstra (Optus’ main competitor in
the mobile communications market) to
exploit the television broadcast of their
games. The TV Now service clearly
undermined the value of Telstra’s rights
deals by providing an unauthorised on-
demand “replay package”.
In its defence, Optus argued that there
was no copyright infringement since
the copying was done by the consumer
and not Optus. Accordingly, the TV
Now system complied with the ‘time
shifting’ exception under Section 111
of the Australian Copyright Act 1968
(Cth) (the Copyright Act). Section 111
permits a person to make a recording
of a broadcast, solely for private and
domestic use, so that he or she can
watch the programme at a later, more
convenient time.
FIRST INSTANCE
At first instance, a single judge of the
Federal Court, Justice Rares, agreed
with Optus and held that the TV Now
system did not infringe copyright.
Even though Optus was providing the
technology that facilitated the recording,
Justice Rares held that it was ultimately
the subscribers, not Optus, who made
the recordings when they initiated
the recording by clicking the ‘record’
button on their mobile devices. Justice
Rares accepted that subscribers made
the recordings for personal use and
therefore would be entitled to rely on
the time shifting exception in section
111.
In short, Justice Rares considered that
the TV Now system was no different
from a person using a PVR at home to
record a program and view it at a later,
more convenient time. Consequently
neither the NRL, AFL or Telstra had
any basis on which to prevent Optus
from undermining their rights, so an
appeal was inevitable.
QUESTIONS TO DECIDE
On appeal, the Full Federal Court had
two questions to consider:
1. When subscribers used the TV
Now system to record a program, who,
for the purposes of the Copyright Act,
was the maker of the copy?
2. If Optus’ act in making such a
copy would otherwise constitute an
infringement of the copyright of the
AFL, NRL or Telstra, could Optus rely
on the “time shifting” exception under
section 111 of the Copyright Act?