Last week, the Federal Court (Justice Rares) handed down its decision in a landmark case involving the broadcast of free to air television of football and rugby league matches on certain smartphones and PC's.

The case concerns Optus' TV Now Service, which offers Optus customers the ability to record free to air television programs and play them back on any one of four compatible devices (namely PC's, Apple devices, Android devices and 3G devices) operated by a user of the service. The AFL and NRL claimed that Optus' TV Now service infringed their copyright in broadcasts of AFL and NRL matches by making copies of the broadcasts and communicating those copies to users of the service. As the holder of 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 via mobile phones, Telstra made similar claims against Optus.

The Court considered that the making of a recording of the relevant broadcast using the Optus TV Now service was not dissimilar to a person using a VCR or DVR or similar device to copy a television broadcast. Importantly, the Court found that the user (and not Optus) made the recording of the broadcast by clicking on the "record" button on his or her compatible device. The exception to copyright infringement provided by section 111 of the Copyright Act therefore applied in that the recordings were made solely for the users' private and domestic use, even if they were viewed within minutes of the start of the broadcast or "near live".

Although Justice Rares has yet to determine other issues in the case, including whether stored match broadcasts on certain Apple devices constitute infringement of copyright, the decision is another example of technology convergence and its impact upon intellectual property protection. Given the importance of the decision and its ramifications for licensing arrangements such as those between Telstra and the AFL and NRL, an appeal to the Full Federal Court is likely.