The AFL and NRL, ‘the rightholders’, joined forces (and vast resources) accusing Singtel Optus Pty Ltd, ‘Optus’, of breaching copyright by airing games broadcast by the respective competitions free-to-air partners on the internet and across its 3G network (Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2)  FCA 34). The AFL stands to earn an estimated $1.253 billion between 2012-2016 for its broadcast rights and a further $153 million from Telstra for its digital rights and the NRL is set to renegotiate a new broadcast rights deal this year. Optus’ use of its ‘TV Now’ service (which allows the recording of programs on a delay of as little as 2 minutes) represents a possible threat to revenue streams from broadcast partners for the NRL and AFL.
The key issues considered under the Copyright Act 1968 (Cth):
- Who makes the recording using the TV Now service? Optus argued that it merely provided the software and technology for the service and that by the user pressing ‘play’ on his or her mobile device it is the user who makes the recording.
- Does s 111 of the Copyright Act 1968 (Cth) apply? Optus argued that s 111 is applicable. That the recordings were made for the purposes of ‘private and domestic use’ to be viewed at a more convenient time ‘then the time when the broadcast was made’.
In answering the issue of who makes the recording his honour Rares J, embarked on a technical analysis of how both the user and the Optus equipment combine to create the recording. The rightholders contended that it was the TV Now service itself that made the recording and that the user played no role (See: Roadshow Films Pty Ltf v iiNet Ltd  FCAFC 23). Contrary to this view, his honour found that it is the user of the TV Now service who makes the film. His honour further stated that the TV Now service provides the ‘means’ and that the user by pressing the ‘record’ button ultimately made the recording.
On the application of s 111 of the Copyright Act 1968 (Cth) the rightholders argued that there was no evidence of the users’ subjective intent in their dealings with the recordings and that the recordings do now fit within the exception at s 111(1). His honour in deciding on this issue placed emphasis on the fact that the recordings only existed for 30 days on ‘mobile devices or PCs which are, of their nature, private’ and that the rightholders could not prove that the users had any other intention than to watch the broadcasts at a more convenient time. His honour cited the example of a person finishing late at work and then being able to watch the broadcast near live on their compatible device.
Given the threat the TV Now service poses it should be no surprise that the NRL and AFL have appealed the decision to the Full Federal Court with the matter set to be heard from 14-15 March 2012. Click here for further details of the appeal.
This article was prepared by George Klonis, a fourth year BBiomed / LLB student at Monash University. George is presently undertaking work experience in POF’s Melbourne office.