stephen at melbpc.org.au stephen at melbpc.org.au
Mon Feb 13 02:34:24 AEDT 2012

A reasonable article, and editorial, regards TV Now technology ..

Playing By New Rules

Colleen Ricci Feb 13, 2012. <http://www.theage.com.au/victoria/playing-by-

In a landmark copyright decision on internet broadcasting rights, the 
Federal Court has ruled in favour of telecommunications company Optus and 
against the Australian Football League (AFL), the National Rugby League 
(NRL) and rival "telco" Telstra.

At the centre of the dispute was a new service provided by Optus, called 
TV Now, which the AFL, NRL and Telstra argued was in breach of their 

What is TV Now?

Launched last year, TV Now allows customers to record free-to-air 
television programs — including AFL football and NRL rugby matches — on a 
mobile phone or computer, and then watch the recordings with only a two-
minute delay.

Just months before the Optus launch, Telstra announced that it had paid 
$153 million for "exclusive" internet broadcasting rights to AFL games. 
The fact that Optus was able to provide these free-to-air matches to its 
customers — without paying for the rights — meant that Telstra's AFL deal 
was no longer "exclusive" or, according to Telstra, as valuable. Lawyers 
for the AFL, NRL and Telstra argued that Optus was in breach of the 
Copyright Act and sought an injunction against its TV Now service.

Why did the ruling favour Optus?

According to the Copyright Act, which was amended in 2006, viewers are 
permitted to "time-shift" their individual viewing. This means they can 
record programs for their private use and watch them when convenient. The 
question of who was responsible for the recordings — the individual user 
or Optus — was an important factor in the court's decision.

Federal Court judge Steven Rares found that using the TV Now service was 
the equivalent of using a video recorder and that individual users were 
responsible for the recordings. "By clicking the play button, the user 
caused the recording to be streamed from his or her device and only he or 
she could watch it," he said. Justice Rares ruled that Optus was not in 
violation of the Copyright Act.

Justice Rares acknowledged his ruling was commercially and legally 
sensitive and offered parties the right to appeal. The AFL and NRL will 
now have the decision reviewed by a full bench of the Federal Court. If 
the Optus ruling is upheld, the decision may be appealed in the High 
Court. The chief executives of the AFL, Cricket Australia, NRL and Tennis 
Australia held talks with the Prime Minister, Julia Gillard, and senior 
ministers in Canberra to propose an amendment to copyright legislation.

Will sport be affected?

Sporting bodies such as the AFL rely on the income they generate through 
the sale of broadcasting rights, covering free-to-air TV, pay TV and the 
internet. The AFL's most recent five-year media deal was worth $1.5 
million. The NRL hopes to match that success, with a similarly 
significant portion coming from the sale of internet rights. Some say 
that the court decision has undermined the value of online content and, 
if upheld, is likely to affect the future income for numerous sporting 

Others say the court decision, though unsettling for the sporting bodies, 
highlights the changing nature of the book, music and film industries. 
Over recent years, these industries have grappled with the challenges 
presented by the internet as they attempt to establish where ownership 
begins and ends, and the extent to which "piggybacking" should be 
tolerated. Communications Minister Stephen Conroy suggests that the 
ruling "could significantly change the way sporting rights are allocated 
and whether it is possible to protect content online".

What are others saying?

While sporting bodies were angered by the decision, mobile carriers Optus 
and Vodafone hailed it as a "breakthrough for mobile content services". 
Some say it represents a triumph of the individual's rights to online 
content as opposed to the broadcaster's right to exclusivity.

Others predict that the ruling will have serious financial implications 
for all sporting bodies with broadcasting rights to sell, including V8 
Supercars, soccer, cricket and tennis. They say there will be less money 
available to clubs and players in future.

Many lament the inadequacy of copyright legislation. They say it is ill-
equipped to deal with ground-breaking technologies, such as cloud 
technology (internet data-storage, used by TV Now), and has failed to 
keep pace with the rapidly changing media environment. Others say 
sporting bodies will simply have to adapt: new business models will have 
to supplant the old, which are fast becoming outmoded.

Recent Headlines

"Decision renders TV deals worthless" Sydney Morning Herald, February 2

"Rivals to copy Optus plan if appeals fail" The Australian, February 3

"Sports chiefs lobby PM for change in copyright law" Sydney Morning 
Herald, February 7

"Optus succeeds in bid to air sport via new mobile TV service" Herald 
Sun, February 1

What The Age (Editorial) says

"Strictly speaking, Optus has observed the letter of the law, while the 
law itself has become relatively nebulous. This fact was emphasised by 
Justice Steven Rares, who ruled last week that the company's TV Now 
service was indeed legal because of 'time-shifting' provisions in the 
Copyright Act, which were adopted in 2006 to permit recordings of free-to-
air television for private and personal use. But, while Optus maintains 
it is keeping 'well within the intention and spirit' of the act, at least 
one prominent intellectual property lawyer has asked: should a law 
designed for private individuals include businesses with clear commercial 
motives? It is at this stage difficult to fathom which side is right. But 
one thing is certain: technology has leapt ahead of the legislation 
designed to control it."

Editorial opinion, February 9

What people say

"Even though Optus provided all the significant technology for making, 
keeping and playing the recording, I considered that in substance this 
was no different to a person using equipment or technology in his or her 
own home or elsewhere to copy or record a broadcast. I noted that a 
similar result had been reached by appeal courts in the United States and 

Federal Court judge Steven Rares, February 1

"What this will now do is force changes to copyright law which date back 
to the 17th century ... It's going to be a whole new world for the 
television industry from now onwards."

Telecommunication analyst Paul Budde, The Daily Telegraph, February 1

"This has been a win for Australians, for innovation and for the law. 
This is a product similar to things that you can do today. So we see this 
no different from any other personal video recording device."

Optus spokeswoman Clare Gill, ABC's Lateline, February 1

"We are a business where money comes in the door and gets distributed out 
the door, and if there's less money coming in then all the game's 
stakeholders miss out to varying degrees. And that would include the 
clubs and the players... As it stands, the decision has the potential to 
seriously devalue the ability of sports like ours to sell exclusive 
content across the various platforms."

NRL chief executive David Gallop, The Age, February 3

"The technology has now jumped ahead of the law … so we've got to try and 
find a way to get it back in balance."

Communications Minister Stephen Conroy, The Sydney Morning Herald, 
February 3

"We are absolutely entitled to protect our content and exploit our 
content … What we do as a not-for-profit organisation is reinvest [the 
revenue] back into our code. But we will do everything within our power — 
everything — to make sure that we protect our content, because that's 
what it is — it's ours."

AFL chief executive Andrew Demetriou, The Sydney Morning Herald, Feb 3

Web Links

Copyright Amendment Act 2006 — Recording Broadcasts


Read more: http://www.theage.com.au/victoria/playing-by-new-rules-



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