The Full Court of the Federal Court of Australia has today upheld an appeal brought by Telstra and the representative partnerships of the AFL and NRL regarding breaches of the Copyright Act 1968 (Cth) (“the Act”).  

This decision has far-reaching consequences with respect to service providers, not only Optus, to provide consumers with the technological means of digital consumption of content.

Background

At first instance, the Federal Court considered the contentions made by the appellants (the AFL, NRL and Telstra) that Optus was infringing copies of the broadcasts of particular sporting matches and later communicating them to the subscribers of an Optus technology known as “TVNow”. Essentially, TVNow allowed Optus mobile subscribers to record on their mobile device and play back at their convenience the Copyrighted matches.

At first instance, the Federal Court considered the exception for private and domestic recording contained within section 111 of the Act and found in favour of Optus, suggesting that Optus was not responsible for the creation of the copies of the Copyrighted works and, ultimately, the service which Optus offered was substantially no different from a VCR or DVR which fell into the exception for private and domestic recording within section 111 of the Act.

The appeal

Their Honours Finn, Emmett and Bennett JJ of the Federal Court heard the appeals by the appellants which consisted of:-

  • Where a cinematograph film (or copy) and a sound recording (or copy) were made when a television broadcast of one of the AFL or NRL matches was recorded for a subscriber, who for the purposes of the Act was the maker of that film? Was it Optus or the subscriber (or both of them jointly);
  • If Optus’ act in making such a film would otherwise constitute an infringement of the Copyright of AFL, NRL or Telstra, can Optus invoke the “private and domestic use” defence of section 111 of the Act?  

Ultimately, Their Honours found that the TVNow service was not ultimately driven by the subscriber alone, instead, it was a concerted action jointly or severally with Optus given the fact that Optus provided the service in which the copying occurred within.

That is, simply clicking “record” on the service provided by Optus did not render the individual subscribers to stand alone in the recording of the Copyrighted works, for which then they would enjoy the protections afforded by section 111 of the Act. Instead, the recording was ultimately made either by Optus alone or jointly by Optus and the subscriber.

Their Honours found that if Optus alone was the maker, it had infringed the Copyright interests of the appellants. However, if both Optus and the subscriber were the makers of the copies of the material, the same result occurs given the fact that Optus and the subscriber would be jointly and severally liable, and the individual subscriber could rely upon section 111 of the Act.

Ramifications of the decision

No doubt there will be a Special Leave application to the High Court regarding this decision.

The implications of this decision are far-reaching. Within their conclusions, the Federal Court acknowledged that an interpretation of the Act could be perceived as being inconsistent with issues of technological neutrality. However the Court found that it was not its role to interpret the Act to guarantee a desire for technological neutrality.  

This may leave the door open for service providers, including Optus, to attempt to create different technological innovation which would otherwise secure the same type of content as TVNow without infringing the Act.  

A copy of the decision can be found here.