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Insight
WHAT DID THE COURT
DECIDE?
On the first question, the full Federal
Court formed alternate views as to who
was the maker of the recording. It held
that that ‘maker’ of the copy was either
Optus acting alone or, its preferred
view, the copy was made by Optus and
the subscriber jointly.
Given Optus’ considerable investment
in its TV Now service, the Court found
that, not only had Optus solicited
subscribers, it had also designed and
maintained a sophisticated system that
was the “main performer” in making
recordings of programs. Because of
this, and the nature of the contractual
arrangements with its subscribers, the
Court accepted that Optus must either
be the maker of the copies acting on
its own or, since the actual recordings
were instigated by the subscriber,
Optus and its subscribers could both
be responsible for making the copies.
The Court was not persuaded that
Optus was merely making the TV Now
service available to users so that users
could copy a broadcast and view it at a
later time. Rather, the Court found that
Optus, in offering the TV Now service,
was more akin to ‘a commercial
photocopier which copies copyright
material provided to it for copying by
it’.
On the second question, having
found that Optus was either the sole
maker or joint maker of the recorded
program, Optus could not rely on the
time shifting exception. There was
nothing in the Copyright Act to suggest
that this defence was intended to
cover commercial copying on behalf of
individuals, even if the individuals only
use the copies for domestic purposes.
IMPLICATIONS OF THE
DECISION
In arriving at its conclusion, the
Federal Court acknowledged that its
interpretation of the Copyright Act
could be viewed as inconsistent with
the principle of technological neutrality.
However, the Court decided that it was
not its role to interpret the Copyright
Act in order ‘to secure an assumed
legislative desire for such neutrality’.
As a final remark, the Court accepted
‘that different relationships and differing
technologies may well yield different
conclusions to the “who makes the
copy?” question’.
The implications of this comment
are far reaching. While this decision
prevents Optus from providing the
TV Now service in its current form, it
remains open for Optus, and other
service providers, to devise different
technology to achieve the same result
for consumers without infringing the
Copyright Act. This means that the
victory for the AFL, the NRL and the
other rights holders may be short
lived.
Optus has indicated that it will appeal to
the High Court of Australia and subject
to the High Court accepting that there
are sufficient grounds, it remains to be
seen if it will endorse the decision of
the lower courts.
THE UK POSITION
The legal position in the UK is similar to
that in Australia. The question of “who
makes the copy” will, ultimately, be a
question of fact. It is perhaps inevitable
that technological and contractual
arrangements will be devised such
that a court will determine that that the
domestic user is the person effecting
the copying, rather that the service
provider.
However, in order to escape performing
an infringing act, the domestic user
must fall within the UK version of the
time-shifting defence. The UK defence
is worded more narrowly than its
Australian equivalent. In addition to
the copy having to be for private and
domestic use, it must also be made
“in domestic premises”. This would
seem to require some form of PVR in
the user’s home, which is obviously
something that those in the position of
Optus are currently seeking to avoid
and indeed replace.
In many ways, this whole issue is
entirely analogous to the issues faced
in the online space, all the way back
to the infringements by Napster,
EasyInternetCafe and now Newzbin,
Pirate Bay and those ISPs that allow
access to these sites. It is becoming
increasingly clear that where individual
users are committing infringing acts,
and where the large scale of those
acts would not be possible without a
central hub which is clearly designed or
operated in a way to enable or facilitate
copyright infringement, UK courts are
willing to intervene at each stage of
the chain, from user, to the operator of
the “hub” right through to those in the
position of the ISP hosting the hub.
So, what does this mean for the
service provider in the UK? At present,
therefore, it seems as if the cards are
stacked firmly against any potential
provider of a UK-based equivalent to TV
Now. That said, it will be interesting to
monitor the impact of the Government-
initiated, independent review of how
the current IP framework supports
growth and innovation. This review
(led by Professor Ian Hargreaves)
specifically advocated reconsidering
the private copying defences - the UK
Government has recently concluded a
consultation process. As the TV Now
case in Australia has demonstrated,
this issue is one that could have serious
consequences for rights holders and
authorised broadcasters alike- best to
to keep a watching brief.
Article reproduced with kind permission
from:
Nick Fitzpatrick (Partner), Patrick
Mitchell (Associate), DLA Piper
(London)
Judith Miller (Partner), Nicholas Cole
(Special Counsel) DLA Piper (Sydney)
For further information please e-mail
any of the above at: first name.last
name@dlapiper.com