Optus has been cleared to record and transmit free-to-air television shows to consumers with little delay via PCs, smart phones and tablets, in a ruling that has angered the national football codes and fellow telco giant Telstra.
The case is the latest controversy in the area of copyright law, which is being tested by new technologies.
Last year Telstra’s Sensis division suffered a blow after the Federal Court ruled that a small business which was reproducing parts of Sensis’ Yellow Pages directory was not breaching the giant’s copyright.
Justice Steven Rares in the Federal Court in Sydney found yesterday that Optus’s ‘TV Now’ service did not breach copyright laws, because mobile device users were responsible for seeking out a recording, and Optus kept separate recordings for the customer.
Justice Rares said that “such a recording or film was made by the user to watch it at a time he or she considered to be more convenient than when the live broadcast occurred, even if only by minutes.”
Optus argued that the slight delay in meant its TV Now service did not breach the Copyright Act, which allows consumers to “time shift” their viewing.
But Australian Football League chief operating office Gill McLachlan differed, saying it believed that Optus was in breach of both the letter of the legislation and the spirit of the legislation.
Jack Dolphin, senior associate at Mills Oakley Lawyers, says what’s interesting about the decision is that Optus can continue to do what it’s doing, regardless of the prospect of the appeal.
If the judgement is succesfully appealed, however, the telco risks financial penalties down the track.
He adds that yesterday’s decision was a narrow decision on a discrete point and agrees that this is an instance where technology has crept past the law.
“It’s difficult if not impossible to keep up with technology,” he says. But those hoping for quick changes might need to cool their jets: Dolphin says that could take years.
On lessons for SMEs, Dolphin says they must ensure they know where liability rests when it comes to technology.
“If SMEs are looking to put out an app, for example, they need to consider copyright ramifications,” he says.
“It’s kind of similar to cases bouncing around like [internet service provider] iiNet where courts are trying to work out to where the liability rests.”
“If you’re going to host, you need to ensure that there are documents in place giving you protection.”
Intellectual property expert Trevor Choy says the real message of the judgment is that “there are no easy boundaries anymore between TV, web and cable etcetera, which were previously easy to delineate and therefore package as separate rights.”
“The interesting thing will be whether anyone other than Optus starts to play around with the possibilities now, or whether they wait until it’s safe to do so (i.e. after an appeal has resulted in a final decision).”
The decision raises questions about the $1.25 billion broadcasting deal signed between the AFL and pay-TV group Foxtel, free-to-air network Seven and Telstra signed last year. Telstra accounted for $153 million of that deal, nabbing the exclusive internet and mobile telephony rights to AFL games.
It was also anticipated that an upcoming broadcasting deal for the National Rugby League would attract bumper bids for mobile and telephony rights.
Critics of the decision say the law does not take into account the growth of alternative broadcast devices nor protect the rights of free-to-air broadcasters providing the content.
Communications Minister Stephen Conroy will soon release a widely anticipated report into media convergence.