A legal decision which forced Optus to shut down its time shifting service TV Now may eventually lead to reform of existing copyright law to cater for cloud technology. On Friday, the High Court denied Optus leave to appeal a Federal Court decision finding it breached exclusive copyright deals by showing live or pre-recorded free-to-air AFL and NRL games on its TV Now service.
The original case brought by the AFL, NRL and Telstra against Optus hinged on the question of who made the recordings of the broadcasts used by TV Now. Under section 111 of the 1968 Copyright Act, time shifting and format shifting can only occur for private and domestic use.
The original Federal Court ruling determined it was Optus customers who made the recordings of the live or pre-recorded free to air AFL and NRL games using the TV Now service.
However, following the appeal from the AFL, NRL and Telstra, the Full Federal Court ruled that it was Optus, or alternatively it was both Optus and their customers making the recordings.
Commercial enterprises such as Optus are currently unable to rely on s 111 of the Act and must seek permission or a licence from the copyright owner or the content rights holder.
As noted by the Australian Law Reform Commission (ALRC) in its 2012 Copyright and the Digital Economy issue paper, the reproduction of copyright material by commercial enterprises may lower the value of rights to distribute the material.
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Read a related article detailing how Optus has set its sights on the Australian Law Reform Commission’s inquiry into digital copyright.