The Full Federal Court of Australia has unanimously overturned the initial decision of Justice Rares who found that Optus’ “TV Now” service was not infringing on the online broadcasting rights of the AFL and NRL.
In doing so, the Full Federal Court has reinstated the value of digital broadcasting rights like those licensed by the AFL and NRL to Telstra, potentially worth hundreds of millions of dollars to copyright owners.
The initial decision by Justice Rares, first day and second day of arguments in the appeal have been covered in previous blog entries.
The Full Federal Court found that the recording, initiated by the Optus customer when they selected “record” on their TV Now service, was made by either Optus themselves Optus and the customer together. While the customer initiated the creation of the recording, Optus solicited its customers to use its service and maintained sophisticated technology which could record and upload requested content for later viewing.
The Court determined that Optus was the party which “captures, copies, stores and makes available for reward” the recording for later viewing by its customers. There was no instance where, using the TV Now service, the customer was solely responsible for the recording, as found by Justice Rares.
While the customer is able to rely on the “private or domestic use” defence in section 111 off the Copyright Act 1968, which allows for the recording of TV programs for later private viewing, Optus was unable to as the recording for its purposes was not for private or domestic use.
The decision has been seen as a significant victory for copyright owners after the recent High Court iiNet appeal found that internet service providers were not liable for the copyright infringement of its customers.
Optus has since published a notice of their website suspending their TV Now service indefinitely. Back to the top
In doing so, the Full Federal Court has reinstated the value of digital broadcasting rights like those licensed by the AFL and NRL to Telstra, potentially worth hundreds of millions of dollars to copyright owners.
The initial decision by Justice Rares, first day and second day of arguments in the appeal have been covered in previous blog entries.
The Full Federal Court found that the recording, initiated by the Optus customer when they selected “record” on their TV Now service, was made by either Optus themselves Optus and the customer together. While the customer initiated the creation of the recording, Optus solicited its customers to use its service and maintained sophisticated technology which could record and upload requested content for later viewing.
The Court determined that Optus was the party which “captures, copies, stores and makes available for reward” the recording for later viewing by its customers. There was no instance where, using the TV Now service, the customer was solely responsible for the recording, as found by Justice Rares.
While the customer is able to rely on the “private or domestic use” defence in section 111 off the Copyright Act 1968, which allows for the recording of TV programs for later private viewing, Optus was unable to as the recording for its purposes was not for private or domestic use.
The decision has been seen as a significant victory for copyright owners after the recent High Court iiNet appeal found that internet service providers were not liable for the copyright infringement of its customers.
Optus has since published a notice of their website suspending their TV Now service indefinitely. Back to the top