The Full Federal Court has unanimously overturned an earlier trial judge's decision in favour of Optus (for further information please see "Optus wins first round against football bodies"). The court held that Optus's TV Now service infringed the copyright of the Australian Football League and the National Rugby League in relation to broadcasts of their football games.(1) This decision may have implications for other future recording technologies.
Optus's TV Now service gave customers the ability to make recordings of free-to-air television broadcasts on Optus's infrastructure and play them back at a later time on a mobile phone, tablet or computer. In its decision, the Full Court considered the following matters:
- Was the copy of the television broadcast made by Optus or the customer?
- If making the copy constituted an infringement of copyright, could the maker of the copy invoke the time-shifting exemption in Section 111 of the Copyright Act 1996 (Cth)?
In relation to the first question, the Full Court held that the recordings had been made by Optus, or alternatively Optus and the customer. The court noted that the TV Now service was designed and operated by Optus and, at all times, Optus had ownership and control over the physical copies of the recordings made on its computers.
The court dismissed arguments from Optus that compared its service to technologies such as a personal video recorder (PVR) in its customers' homes and that but for its customers pushing the 'record' button, Optus's TV Now service would have made no recordings. The court considered such comparisons to be unhelpful, as they "divert attention from what the TV Now system has been designed to do" and put a strained meaning on the word 'make' in the context of the Copyright Act. The court held that the role of Optus in capturing the broadcasts was so pervasive that it could not be said that Optus was merely providing its TV Now service to customers who used it to make the recordings. Rather, it was Optus itself that captured, copied, stored and made available, for reward, the television broadcasts for viewing by others.
In relation to the second question, the Full Court found that the time-shifting exemption would not apply as there was nothing in the provisions to suggest that they would operate to exempt "commercial copying on behalf of an individual". Despite arguments by Optus that the time-shifting provisions should be interpreted broadly, the court considered this approach inappropriate. The court instead ruled that if such a broad interpretation were intended, a specific legislative amendment should be required clearly to extend the scope of the time-shifting provisions to cover situations such as Optus's TV Now service.
This case is a good example of how copyright laws seek to strike a balance between the competing interests of copyright owners and consumers of copyright works, and how that balancing exercise can involve a fairly arbitrary line being drawn between conduct that, on the one hand, is an infringement of the interests of the copyright owner and, on the other, should be exempted from infringement for being in the public interest.
In the context of this balancing exercise, the courts have often been asked to examine new recording technologies to determine whether their use infringes copyright and whether those involved in supplying that technology are complicit in the infringement. Technologies for recording television broadcasts have progressed significantly since the invention of the video cassette recorder, and users are becoming more accustomed to recording and watching content over multiple devices. Moreover, users are already utilising services that allow them to control remotely the recording of television broadcasts. For example, users of Foxtel's iQ service can remotely schedule the recording of television shows from mobile devices, as can subscribers to the IceTV programme guide service through an internet-connected PVR.
With the rapid progression of recording technology, the court's decision raises some questions as to the practicality of distinguishing between technologies that allow consumers to remotely schedule a recording on a PVR and scheduling a recording on Optus's TV Now service, beyond the fact that (in the latter case) the physical hard drives are not located in the consumer's home. Moreover, the decision casts significant uncertainty as to whether the time-shifting provisions would apply to a service offered by a carrier, such as Optus, that provides 'cloud-based' storage for internet-connected PVRs that record television broadcasts to the cloud rather than to a physical hard drive. The availability of such a service is not far-fetched - companies such as Google and Apple are already looking at new internet television technology that will rely heavily on content being stored in the cloud. In light of the decision by the Full Court, these cloud-based services may face similar legal obstacles.
Optus has sought special leave to appeal this decision to the High Court. However, regardless of the High Court's decision, it is likely that challenges will continue in applying the Copyright Act's time-shifting provisions to newly developed recording technologies. Further amendments to the Copyright Act may be required adequately to accommodate new recording technologies while striking the right balance between the competing interests of copyright owners and the public.
For further information on this topic please contact Tim Clark or Ivor Kovacic at Piper Alderman by telephone (+61 2 9253 9999), fax (+61 2 9253 9900) or email (firstname.lastname@example.org or email@example.com).
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