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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.

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