The High Court has this morning refused Optus’ application for special leave to appeal the Full Court of the Federal Court’s decision in the TV Now case, National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59. 

After hearing argument from counsel for the applicants as to why special leave should be granted, their Honours Justices Gummow, Hayne and Bell declined to hear from counsel for the respondents.  Justice Gummow then gave judgment on behalf of the Court stating that special leave was refused because the applicants had insufficient prospects of successfully appealing against the Full Federal Court’s decision and the specific facts of the case were unlikely to yield more universal propositions.  Costs were ordered in favour of the respondents.

The case concerned whether Optus (and its parent company Singtel Optus) had breached the copyright of the Australian Football League, National Rugby League and Telstra Corporation (which 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) through its service "TV Now".  The TV Now service allowed users to record free to air television programs (including AFL and NRL games) and play them back on a number of devices including mobile phones and PCs.  The Full Federal Court held that Optus could not rely on the "private and domestic use" exception in s 111 of the Copyright Act.