The current legal and political battle between Optus and major sporting bodies is based on an exception introduced into the Copyright Act in 2006 to allow for private use of copyright content presumed to do no commercial harm. That exception was intended to legitimise the widespread practice of ‘time-shifting’: recording television programs to watch at a more convenient time.
Optus’s service enables its customers to request the recording of a selected television program on Optus’s servers and then view the recorded program on their mobile phone, iPad or PC, in some cases within minutes of the original broadcast.
On 1 February, the Federal court held that the use of this service by an Optus customer was covered by the time-shifting exception, even if the user watched the recorded broadcast only two minutes after the live broadcast. There is no requirement in the legislation that a person must own the equipment on which a recording is made, nor that the recording be made in the person’s home.
There is a useful summary by the Federal court of its decision here.
The case demonstrates how an exception, drafted in the context of the technology at the time, can have unintended consequences at some later time. The case also highlights the difficult distinction between a use that is ‘private’ (and presumed harmless to content owners) and a use that delivers commercial benefits. Where a ‘private’ use is made using equipment or services provided by a commercial supplier, the distinction gets blurred.
A related issue arises for exceptions that allow ‘research or study’. In some countries, such as the UK, the exception is limited to ‘private’ research or study, and use of copyright content for research in corporate entities is licensed, recompensing the creators and publishers of the content. In Australia, on the other hand, there is no such qualification and some corporations seek to rely on the exception to avoid licensing arrangements.
The debate about what is ‘private’ and what ‘commercial’ will continue to be a live one, particularly where a ‘private’ use produces commercial benefits.