Posts Tagged ‘copyright’

Optus loses FCA appeal in sport broadcast case (27 April)

In Copyright, FCA on 30 April 2012 at 22:49

National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd [2012] FCAFC 59

Optus has lost an appeal brought by the NRL, AFL and Telstra before the Full bench of the Federal Court of Australia (“FCA”).

The National Rugby League (“NRL”) and the Australian Football League (“AFL”) own copyright in broadcasts of their games. Telstra holds a license to broadcast these games exclusively, including online.

Optus launched a product called TV Now, which allows users of its mobile phone services to select TV programs from an electronic program guide (“EPG”) to be recorded to Optus’ cloud. The phone users can then watch those programs almost instantly, while still recording, or at any time within the next 30 days. In effect, this allows people to watch the program via the Optus recording almost as soon as Telstra has broadcast the sports events.

The plaintiffs claimed Optus was infringing copyright by broadcasting the games. Optus claimed the phone users were recording the games, albeit to Optus’ cloud, and that this activity falls within the Copyright Act 1968 s.111 exception for ‘time shifting’.

Optus prevailed at trial, with Rares J finding the recordings were made by the users of TV Now, not by Optus.

On appeal, Finn, Emmett and Bennett JJ held that Optus could not rely on the s.111 ‘time shifting’ exception as the recordings were made by either Optus, or by Optus and the TV Now user. The court held:

“The maker was Optus or, in the alternative, it was Optus and the subscriber. It is unnecessary for present purposes to express a definitive view as between the two. Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected.”

“Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying. That is our preferred view.”

Optus suspended its TV Now service in response to the judgement. It may still seek leave to appeal to the High Court of Australia.

Useful Documents:


HCA iiNet wins in HCA (20 April 2012)

In Copyright, HCA on 30 April 2012 at 21:14

Roadshow Films Pty Ltd & Ors v iiNet Ltd

The High Court of Australia (“HCA”) has unanimously dismissed an appeal in a case against internet service provider (“ISP”) iiNet. The case concerned ‘authorization’ to infringe within the meaning of section 101(1A) of the Australian Copyright Act 1968.

Roadshow Films and other members of the Australian Federation Against Copyright Theft (‘AFACT’) had alleged that iiNet ‘authorised’ its subscribers to engage in copyright-infringing downloading of material owned by AFACT members. Their appeal to the HCA followed iiNet’s majority victory before a Full Bench of the Federal Court of Australia, and its win at first instance.

The HCA found that iiNet was not technically in control of the BitTorrent system used by its subscribers to download infringing content, and that it did not authorize infringement. A summary issued by the HCA stated:

“The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants’ films. Rather, the extent of iiNet’s power to prevent its customers from infringing the appellants’ copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts. For these reasons, the Court held that it could not be inferred from iiNet’s inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the appellants’ films by its customers.”

The HCA decision leaves open the possibility that ISPs could still be found to have authorized infringement in situations in which a rights-holder provided an ISP with more specific information.

It also paves the way for legislative change in this area of copyright law. The decision of French CJ, Crennan and Kiefel JJ noted:

“This final conclusion shows that the concept and the principles of the statutory tort of authorisation of copyright infringement are not readily suited to enforcing the rights of copyright owners in respect of widespread infringements occasioned by peer-to-peer file sharing, as occurs with the BitTorrent system.” (para.79)

In a Press Release issued shortly after the HCA’s judgment was delivered, AFACT Managing Director Neil Gane called for legislative change, stating:

“Both judgements in this case recognise that copyright law is no longer equipped to deal with the rate of technological change we have seen since the law of authorisation was last tested. They both point to the need for legislation to protect copyright owners against P2P infringements… Now that we have taken this issue to the highest court in the land, it is time for Government to act. We are confident the Government would not want copyright infringement to go on unabated across Australian networks especially with the rollout of the NBN.”

Collecting Societies to Merge

In Copyright on 5 April 2012 at 18:30

Collecting societies Copyright Agency Limited (‘CAL’) and Viscopy have received regulatory approval to merge.

The Australian Competition and Consumer Commission (‘ACCC’) today issued a draft determination authorising a services agreement between the organisations. Under the agreement, CAL will provide membership, licensing and administrative services to Viscopy’s members and licensees. Viscopy’s board will continue to serve its members.

“It will create a ‘one-stop-shop’ for any organisation wanting licence approval to use domestic or internationally created text and artistic content,” Viscopy said.

Regulatory approval will last for five years and the arrangement is expected to take effect from mid-2012.

Viscopy provides copyright management services to visual artists, such as fine artists, photographers and cartoonists. CAL provides rights management services to holders of copyright in print materials, including publishers, authors and visual artists.

Collecting societies are  not-for-profit organisations. They act as non-exclusive agents managing rights on behalf of copyright holders under provisions of the Copyright Act 1968. Membership of the collecting societies is free and voluntary, and both CAL and VIscopy are signatories to the Australian Code of Conduct for Copyright Collecting Societies.

Useful Links:

HCA: PPCA v Cth (28 March 2012)

In Copyright on 1 April 2012 at 16:11

Phonographic Performance Company of Australia Limited (PPCA) & Ors v Commonwealth of Australia & Ors

The High Court handed down its decision confirming the constitutional validity of the 1% (of the broadcaster’s gross earnings) cap on royalties payable for the radio broadcast of sound recordings.

ALRC Copyright – Draft Terms of Reference

In Copyright, Law Reform on 1 April 2012 at 14:48

The draft terms of reference for the Australian Law Reform Commission’s forthcoming inquiry into copyright in the digital environment have been released. See announcement here:

In summary, it’s proposed that the ALRC look into whether extra exceptions are needed to:

  • “facilitate legitimate use of copyright works to create and deliver new products and services of public benefit; and
  • allow legitimate non-commercial use of copyright works for uses on the internet such as social networking.”

Send comments on the draft to Submissions to the Attorney-General’s Department via email at by 27 April (you can spend the previous day – World IP Day – writing them!)