Optus timeshifting broadcast service not in breach of copyright

In Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34 Justice Rares of the Federal Court of Australia decided that Optus’ TV Now service does not infringe the copyright in broadcasts of football games in competitions conducted by the Australian Football League (AFL) and National Rugby League partnership (NRL). Telstra has an exclusive licence from the AFL and NRL to exploit free to air broadcasts of live and pre-recorded AFL and NRL games on the internet and mobile telephony.

UPDATE 28 April 2012: The appeal of the NFL, AFL and Telstra to the Federal Court Full Court succeeded.

UPDATE 10 May 2012: Optus will apply for special leave to appeal to High Court

UPDATE 11 September 2012: Optus’application for special leave to appeal to High Court dismissed

Optus began offering a new service called “TV Now” in July 2011 to its private, as well as small to medium business, customers. The service gives a user the ability to record free to air television programs, including AFL and NRL games, and play them back on any one of four compatible devices, namely, PCs, Apple devices, Android devices and 3G devices.

The user can view the recording in the 30 days following the time of the original broadcast. When a user clicks “play” on his or her compatible device, Optus’ data centre streams the copy of the program in the appropriate format to that device so that the user can watch it. However, the streamed copy is not downloaded to the users’ device. And, users with Apple iPads or iPhones can watch a program selected for recording “almost live” within about two minutes of the commencement of the actual free to air broadcast. Users with other compatible devices (PCs, Android and 3G devices) can only watch a recorded program after the broadcast had finished.

Optus contended that each user of the TV Now service, rather than it, had recorded, or made the recording, and played it without any infringement of copyright. Optus relied on an exception in s 111 of the Copyright Act (the “timeshifting” exemption). In essence, the exception allows a person to make a film, or copy, or recording of a broadcast solely for his or her private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made. If the person does make a copy in those circumstances, then the making of the recording will not infringe copyright in the broadcast.

The parties agreed there were 7 key legal issues but the decision was based on 2 findings:

1. that the user made each recording of a broadcast by clicking on the “record” button on his or her compatible device. Justice Rares considered that this result was substantially similar to the position where a person used a video cassette recorder (VCR), digital video recorder (DVR) or similar device to copy a television broadcast. Even though Optus provided all the significant technology for making, keeping and playing the recording, he considered that in substance this was no different to a person using equipment or technology in his or her home or elsewhere to copy or record a broadcast.

2.Justice Rares decided that when the user clicked the “record” button, he or she did not infringe the rightholders’ copyright in the broadcasts of the AFL and NRL games because of s 111(1) and (2) of the Copyright Act. That was because the evidence suggested that individual users had made the recordings using the TV Now service solely for their private and domestic use by watching the recordings at a more convenient time, even if they watched these “near live” within minutes of the start of the broadcast.

The decision will be appealed.

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