Optus’ online DVR found not to infringe copyright; AFL and NRL set to appeal
Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No.2)  FCA 34
The Federal Court has ruled that an internet-based television recording service provided by Optus to its mobile network subscribers did not infringe copyright in the live National Rugby League (NRL) and Australian Football League (AFL) sport telecasts. The decision has significant commercial impacts for sporting leagues and broadcast rights holders who pay for the exclusive rights in those telecasts.
The Optus TV Now recording service
Launched in July last year, the TV Now service allows users to record and store free-to-air TV programmes on Optus’ servers which can then be played back within 30 days using a web browser or the user’s mobile phone. Users with Apple devices can view programmes as they are being recorded, with a delay of as little as two minutes from the commencement of the actual free-to-air broadcast.
The key questions for determination
Optus initiated the proceedings in August 2011, claiming the NRL and AFL had made unjustified threats of copyright infringement against it in relation to the TV Now service. The NRL, AFL and Telstra (the exclusive rights holder of the NRL and AFL broadcasts) subsequently cross-claimed for copyright infringement.
The parties agreed that the primary issues for determination by Justice Rares in relation to the use of the TV Now service were:
- who made the recordings: Optus, the user or both?
- if the users were found to have made the recordings, would the “time-shifting” defence to copyright infringement apply?
- who was responsible for streaming the recordings to the users’ PCs or mobile phones: Optus, the user or both?
Who made the recordings?
Justice Rares found that the user had made the recording by pressing the “record” button on their PC or mobile. The judge did not consider this to be any different from a person using a VCR or DVR at home to record a broadcast.
Is the use of the TV Now service a permitted “time-shifting”?
Section 111 of the Australian Copyright Act 1968 permits the recording of television broadcasts for replay at a more convenient time, if the use is “private”. Justice Rares found that this defence to copyright infringement applied to the users of the TV Now service.
The judge said that it did not matter that a user of an Apple device could watch a broadcast “near live” within minutes of the start of the broadcast. The judge found that the expression “at a time more convenient” in section 111(1) does not preclude a user from watching a broadcast “near live” if that is more convenient. In his judgment, Justice Rares referred to current recording technology like TiVo which allows viewers to pause a broadcast and resume watching it “near live” at a time more convenient to do so.
Who streamed the recordings?
Under the Copyright Act it is an infringement for a person other than the rights holder of a television broadcast to communicate that broadcast to the public. At issue in this case was who was ultimately responsible for the transmission of the recording to the user and whether the transmission constituted a “communication to the public”.
Justice Rares found that the user, not Optus, was responsible for streaming the recorded broadcast to their PC or mobile for viewing. This is because in order for the broadcast to be streamed to their device the user had to initiate the stream by pressing the “play” button on their mobile or PC.
His Honour also found that the streamed recordings were not made public. Separate recordings were made for individual users and the recordings were streamed to individual users for their personal use.
Appeal on foot
Appeals have been lodged against Justice Rares’ decision and the Full Federal Court is set to hear the appeal on 14 and 15 March.