On 27 April, the Full Court of the Federal Court held that Optus was liable for infringing copyright in broadcasts of football games, overturning the decision of the lower court.
The case concerns Optus’s TV Now service, which enables Optus’s 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. The issue was whether the service infringed copyright, or whether it was covered by the exception in the Copyright Act that allows people to record television programs to watch at a more convenient time.
The decision turned on two issues:
• who made the recordings of the TV programs: Optus, the subscriber, or both?
• did the time-shifting exception apply?
The Full Court held (disagreeing with the lower court) that each of the recordings was made by Optus, or by Optus and its subscriber together, and that the time-shifting exception did not apply.
The court acknowledged the difficulty of identifying the ‘maker’ of the recording given the sophisticated technology involved, but considered that the automated process involved did not preclude Optus being the maker:
‘Optus is not merely making available its system to another who uses it to copy a broadcast’ … Rather it captures, copies, stores and makes available for reward, a programme for later viewing by another.’
The court made some concluding comments about the extent to which a court can interpret legislation according to the policy underlying it and the respective roles of the courts and legislature. It also commented on the limits to which a principle of ‘technological neutrality’ can influence a court’s application of a legislative provision to later technology.
There are some issues arising from the case that are the subject of ongoing debate about copyright policy.
The court described the case as ‘yet another round in what has been described as the conflict between the electronic equipment industry and the entertainment industry’, in which the actions of an entity that ‘facilitates’ copying, rather than the consumer who is the beneficiary of it, are called into question. The role and responsibilities of intermediaries who develop businesses based on content produced by others is a key feature of the current debates about copyright policy. Interestingly, Melbourne barrister Warwick Rothnie in his blog IPwars.com, has queried whether there might be implications from this decision for the liability of internet service providers for the actions of their subscribers.
The court also cautioned against the use of analogies. Analogies are often used in debates about copyright policy – particularly between online and ‘offline’ activities such as ‘reading’ or ‘browsing’ – and can sometimes hinder rather than assist a suitable discussion of the issues.