In September, the High Court consisting of Justices Gummow, Bell and Hayne refused to grant Optus special leave to appeal the decision of the Full Federal Court of Australia in the Optus TV Now case.1 The High Court found that there was insufficient prospects of success in overturning the Full Federal Court’s decision, and that further consideration of the particular facts of the case would fail to provide any guidance (outside of the specific facts of the Optus TV Now case) as to the general application and scope of section 111 of the Copyright Act 1968.

“Time-shifting” exception to copyright infringement

Section 111 provides an exception to copyright infringement and applies where a person makes a recording of a broadcast for their “private and domestic use” by watching it at a time more convenient than when the broadcast is aired (this is also known as “time-shifting”).

History of the Optus TV Now case

The High Court’s decision to refuse to grant Optus special leave marks the end of the Optus TV Now case which was first heard by Justice Rares of the Federal Court in February this year. In April, the Full Federal Court overturned Justice Rares’ decision and found in favour of the National Rugby League (NRL), Australian Football League (AFL) and Telstra (the rights holders) when it held that Optus was at least partly responsible for making the recordings through its TV Now service, and that the section 111 exception did not apply to it.

Australian Law Reform Commission copyright review

The Full Federal Court’s decision indicates cloud computing service providers could be held liable for copyright infringement in storing and streaming data originally uploaded by their customers under the current legislation. This is one area that is specifically being addressed by the Australian Law Reform Commission (ALRC) in their upcoming review of the adequacy of the current Copyright Act in the digital environment. The first issues paper was released on 20 August and invites submissions on whether the current Copyright Act is impeding the development of cloud computing technology in Australia, and whether the Act should be amended to create exceptions for cloud computing services.