Federal Court has it wrong on sports broadcast copyright

The Cattery Roar Guru

By The Cattery, The Cattery is a Roar Guru

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    In a rare show of solidarity, AFL boss Andrew Demetriou and NRL boss David Gallop were photographed together yesterday walking through the corridors of power on Capital Hill.

    They had just finished lobbying both sides of the political divide about possible changes to the Copyright Act to combat the recent Federal Court decision allowing telecommunications companies to copy the signal from free-to-air TV providers so that their customers could view a TV show online in almost real time.

    The technology boffins are in universal agreement that this is simply another form of ‘time-shifting’, allowing consumers to copy TV content to view when more convenient.

    Of course the modern trend is for technological gurus to deem all forms of new technology as an absolute god-send to hi-tech consumers, but nowhere have I come across an opinion from a strict legal reading of the case, and actually referencing the Copyright Act.

    So I thought I would do a bit of research and form my own opinion.

    The first point to make is that copying a TV show is generally an infringement of copyright under the Copyright Act, unless certain conditions are met so as to fall within specific exemptions.

    The Copyright Amendment Bill of 2006 was introduced to allow consumers some leeway in legally doing what they had been doing anyway for many years.

    As the Explanatory Memorandum to the Bill explained (circulated by authority of the then Attorney-General, the Honourable Philip Ruddock MP), the lack of provision of copying for private and personal use had become increasingly out of step with consumer attitudes and behaviour.

    Before the introduction of the Bill, such’ time-shifting’had involved an infringement of copyright. The Amendment Bill of 2006 was intended to allow an exemption for the ‘time-shifting’ of broadcasts for private use.

    We must bear in mind that the exemption granted by the Copyright Amendment Bill of 2006 is very specific – the circumstances under which copyright infringements are not recognised are laid out in a detailed manner.

    These circumstances are described clearly in an Information Sheet issued by the Australian Copyright Council in Dember 2006, i.e. shortly after the Amendment Bill was passed by Parliament.

    The Information Sheet is entitled: TV & Radio: Home Taping.

    It states that people are “now allowed to record a television or radio program, on private premises, to watch or listen to at a later time.”

    In the question-and-answer section, the Council makes it very clear that you cannot record a program while watching or listening because the exemption allows you to make a recording in order to watch it “at a time more convenient than the time when the broadcast was made”.

    In the recent Federal Court decision, it has decided that a 90 second delay is sufficient to meet the time-shifting provisions, in effect allowing a viewer to copy and watch while the original TV program is still running.

    This point is clearly contestable, and one would think that it’s one of the areas upon which the AFL’s forthcoming appeal will be based.

    Another question the Council covers deals with the internet. It makes it clear that you can only copy over the internet if you are copying what the original TV station is broadcasting simultaneously over TV and the internet.

    Therefore, it’s arguable whether the internet itself can be used to record the original TV show because what is being recorded is not a simultaneous online broadcast by the originating TV station.

    On top of what I’ve mentioned, the other thought that occurs to me is that rather than using privately owned equipment to make their copy, viewers are using the infrastructure of a third party, the copy is sitting on the servers of that company.

    On what basis is that third party allowed to hold copies of a TV show to which it has no copyright?

    The exemption to the Copyright Act is for the private user, but the telecommunications company assisting that private user would have no such exemption available to it.

    Contrary to what many technological boffins are predicting, I would conclude that the impending appeal will be in favour of the copyright holders.

    Having said that, there still appears to be merit in the Government clarifying the situation in the Copyright Act, and that is likely to occur with bipartisan support.

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    The Crowd Says (89)

    • February 9th 2012 @ 6:12am
      Boomshanka said | February 9th 2012 @ 6:12am | ! Report

      As a user of Optus Now to access hoarded sport, I make the following observations;

      The Optus Now service behaves exactly like a DVR but it is in the cloud (its the only difference);

      1) The program has to be prerecorded (like at home)
      2) If I forget to set up a recording, I can’t record later (retrospectively).
      3) It can’t be shared with “mates” unlike a DVD or VCR.
      4) The is only so much space (a $7/month plan gives me 5 hours of “space” – not enough for two AFL games)
      5) Recorded programs arrive complete with FTA ads.
      6) The recording is woeful, not HD (but adequate to even see numbers on jerseys)

      Telstra is providing highlights packages and a much more rounded service similar to a rights holder. The Optus TV Now service is merely a DVR in the cloud. There are no additional NRL / AFL packages or content that can’t be viewed with a freeview TV.

      At the moment, living in Melbourne, the local content provider chooses to hoard sport other than AFL into the so called “world capital of sport”. People will find a way to access hoarded sport such as this. It provides a safer alternative than seeking P2P options full of viruses etc.

      I’d recommend the OPTUS now and following the federal court ruling it is much more legal and secure than say the AFL rights held by FOX (which is still waiting on parliamentary approval).

      • Roar Guru

        February 9th 2012 @ 8:16am
        The Cattery said | February 9th 2012 @ 8:16am | ! Report

        Quite clearly it doesn’t behave exactly like a DVR – that’s the point of my article. As I also hint in the article, people are too hung up on the technological argument, rather than examining the copyright.

        The starting point for such a discussion is that ALL copies of TV shows are an infringement of copyright, however, the Copyright Act allows some exemptions, namely time-shifting for personal use.

        But the Copyright Council information sheet is quite clear on this point: you CANNOT tape a show while viewing it, because the exemption allows you to make a recording in order to watch it “at a time more convenient than the time when the broadcast was made”, i.e. to watch at a later time.

        That Optus allows you to watch the TV show while it is still running is a clear infringement of the Copyright Act as it currently stands – there are no ifs and buts about it – a clear infringement. Whether the technology is good or not has nothing to do with whether an infringement is occurring or not.

        On top of that, I do question on what basis Optus can retain a copy of something they don’t have copyright to on their infrastructure, e.g. their servers, etc. It seems to me that they don’t have that right because that act does not fall within the exemption as defined in the Copyright Act.

        Now I agree with you that new technologies will allow the individual to do this for themselves – but once again, that doesn’t get round the essential point that to watch such a copy while the show is running, i.e. near live, is an infringement of copyright.

        • February 10th 2012 @ 9:18pm
          Whites said | February 10th 2012 @ 9:18pm | ! Report

          Your confusing the Act with an information sheet released by the Copyright Council. The information sheet is simply an interpretation of the act by lawyers employed by the council. The only valid interpretation is by the courts as just happened in the Optus case.

          The Copyright Council seems far more specific then what is actually stated in the act. In fact, the Copyright Council reads far to much into the Act. e.g.the information sheet states you can’t record a show you are watching. In no way does the act seem to suggest this.

          • February 11th 2012 @ 7:25am
            Boomshanka said | February 11th 2012 @ 7:25am | ! Report

            The Explanatory Memorandum that accompanies the copyright amendment act contradicts much of the Copyright Councils information sheet.

            For example the EM states;

            This amendment provides greater flexibility in the conditions that apply to `time-shift’ recording. The development of digital technologies is likely to result in increasing use of personal consumer devices and other means which enable individuals to record television and radio broadcasts on or off domestic premises. The revised wording of s111 enables an individual to record broadcasts, as well as view and listen to the recording, outside their homes as well as inside for private and domestic use.

            How much clearer does it have to be? If I was going to court, I’d be using the Act (first) any complimentary regulations (second) and the explanatory memorandum (third). All of which would be in OPTUS and the consumers favour.

            The courts would not accept an information sheet from the Copyright council as being of any higher status or standing than the above mentioned documents.

            • February 11th 2012 @ 5:09pm
              Whites said | February 11th 2012 @ 5:09pm | ! Report

              The information sheet from the Copyright Council has as much standing as any of our posts here. It’s basically a piece of biased propaganda.

    • February 9th 2012 @ 6:48am
      Boomshanka said | February 9th 2012 @ 6:48am | ! Report

      TC

      Further to the above, and if the government go down the path of only recording onto devices owned by the individual;

      Over two years ago Sony released remote play on their Playstation 3.

      Once set up, with the PS3 in the home, it is possible to use a sync’d PSP, Vaio Latop or Sony Ericsson AINO phone anywhere in the world (subject to a good internet connection) and access TV from the PVR function of the PS3 (Play TV).

      ie if the PS3 is connected to the aerial at home, one is able to watch live TV coverage of the AFL / NRL or whatever they chose – akin to what apparently of concern now.

      Whilst entirely possible to beam live AFL to a remote device (live not on a 2 minute delay), we didn’t see Telstra or the AFL get upset about it on release which was a good year prior to the AFL media deal. It was as obvious to Telstra then as it is plainly obvious now that they payed for something that is already in the public domain.

      Check out:
      http://en.wikipedia.org/wiki/PlayTV

      http://au.playstation.com/playtv/

      Would love to see Telstra and the AFL go after Sony for breach of copyright.

      • Roar Guru

        February 9th 2012 @ 8:24am
        The Cattery said | February 9th 2012 @ 8:24am | ! Report

        Yes, it’s possible other devices doing similar things are infringing copyright, but I’ve focused on the Optus case for the moment because that’s what the court case was about, and also because when I looked into it, it seemed quite obvious to me that the Federal Court had got it wrong.

        I would add two points:

        1. if the Optus service was tweaked so that you could only watch the copy AFTER the show had finished going live on FTA, then that would certainly fit in better with the current time-shifting exemption available in the Copyright Act, although

        2. there is still a question mark as to whether Optus can retain a copy on their servers of something to which they don’t own the copyright. It seems to me if you have a personal device doing that, you get round that problem, but you are still infringing copyright if you watching it near-live – that too is an infringement of copyright.

        • February 9th 2012 @ 8:30am
          Boomshanka said | February 9th 2012 @ 8:30am | ! Report

          FYI

          The 2 minute delay only applies to Apple devices. Because I’ve gone down the Android route, I have to wait until the end of the broadcast before I can watch, but for me a two hour delay beats 4 – 12 hours any day.

          FYI: The first round match between the Warriors and Manly (Grand Final rematch) will be broadcast into Melbourne after midnight (as occurs for every regular round NRL match. This will be a 12 hour delay.

          • Roar Guru

            February 9th 2012 @ 8:33am
            The Cattery said | February 9th 2012 @ 8:33am | ! Report

            Boomshanka
            This article is merely about whether the Federal Court has interepreted the Copyright Act correctly in this particular case.

    • February 9th 2012 @ 8:20am
      Boomshanka said | February 9th 2012 @ 8:20am | ! Report

      TC

      Below is the section from the Copyright Act 1968 applicable to time-shifting and watching at a more convenient time to which amendments were made (from the Copyright Amendment Act of 2006;

      The recent Federal Court determination is in complete agreement with this part of the Act and I struggle to see your argument which is appears to be loosely based on a Q&A section. As to what’s legal or not is determined by the Act, Legislation or Regulations, not a complimentary “information sheet”.

      Any alleged appeal would be based on nothing but hot air. The “noise” is that they are seeking to change the law, which would indicate that even they believe that any action under the act is futile.

      http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s111.html

      COPYRIGHT ACT 1968 – SECT 111
      Recording broadcasts for replaying at more convenient time

      (1) This section applies if a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made.

      Note: Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 .

      Making the film or recording does not infringe copyright

      (2) The making of the film or recording does not infringe copyright in the broadcast or in any work or other subject-matter included in the broadcast.

      Note: Even though the making of the film or recording does not infringe that copyright, that copyright may be infringed if a copy of the film or recording is made.

      Dealing with embodiment of film or recording

      (3) Subsection (2) is taken never to have applied if an article or thing embodying the film or recording is:

      (a) sold; or

      (b) let for hire; or

      (c) by way of trade offered or exposed for sale or hire; or

      (d) distributed for the purpose of trade or otherwise; or

      (e) used for causing the film or recording to be seen or heard in public; or

      (f) used for broadcasting the film or recording.

      Note: If the article or thing embodying the film or recording is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the article or thing but also by the dealing with the article or thing.

      (4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the article or thing by the lender to a member of the lender’s family or household for the member’s private and domestic use.

      • Roar Guru

        February 9th 2012 @ 8:32am
        The Cattery said | February 9th 2012 @ 8:32am | ! Report

        Because in interpreting the meaning of “at a time more convenient than the time when the broadcast is made” the Court had an obligation to review the explanatory memoranda relating to the legislation at the time it was introduced into Parliament, which gives a clearer idea of what the intentions of the Governemnt and Parliament were at the time the legislation was passed.

        The bureaucracy would be very close to all this, so the information sheet is very much based on the policy of the day, as advised by the Minister who introcuded the legislation into Parliament.

        In any event, the wording as it currently stands in the Copyright Act is certainly sufficiently clear to allow an appeal to the Federal Court decision, because the Federal Court has determined that watching near-live is the equivalent of watching at a more convenient time (which the government of the day interepreted as a later time).

        If the courts are interpreting that wording contrary to Government policy, and the intentions of the Government and Parliament back in 2006, then clearly the legislation has to be changed to better reflect those intentions.

        But I would argue that the wording in the Copyright Act is sufficient for the appeal to be upheld.

        • February 9th 2012 @ 8:36am
          Boomshanka said | February 9th 2012 @ 8:36am | ! Report

          With respect:

          What words / section in the act are sufficient for an appeal to be successful?

          • Roar Guru

            February 9th 2012 @ 8:46am
            The Cattery said | February 9th 2012 @ 8:46am | ! Report

            “at a time more convenient than the time when the broadcast is made”

            Also, a question mark remains on whether Optus is allowed to keep a copy of material to which it has no copyright.

            This exemption is aimed at an individual being able to make a copy to view at a later time – there is nothing in here that actually entitles Optus to keep such a copy since they themselves are not involved in watching the copy at a later time.

            • February 9th 2012 @ 8:52am
              Boomshanka said | February 9th 2012 @ 8:52am | ! Report

              “Note: Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 .

              Making the film or recording does not infringe copyright”

              Optus don’t keep a copy. They have no access to your recording in the same way a bank does not own your deposits or you own a rental car when hiring one.

              From: http://tmtblog.minterellison.com/2012/02/federal-court-finds-optus-tv-now.html

              However, his Honour held that s 22(6) operated such that the person who determines the content – in this case, being the user, and not Optus – is the maker of the communication.

              This raised the issue of whether that communication was ‘to the public’. His Honour found that there was no communication to the public.

              When a user clicks the play button, the compatible format of the film stored on Optus’ systems is streamed to a user’s device. The copy of the film that the user sees is a separate copy from those saved for other users, who only see compatible versions that were specifically recorded for each of them. Further, His Honour found that there can be no communication ‘to the public’ where a user makes a recording to view it solely for private and domestic use at a more convenient time within the meaning of section 111 of the Act.

            • February 13th 2012 @ 12:09pm
              soapit said | February 13th 2012 @ 12:09pm | ! Report

              it seems you are basing your opinion on “more convenient” having a very limited meaning (i can’t see how it can be restricted in the way you want without changing the wording of the act – supreme court seems to agree). you are defining your own meaning beyond what the words actually say.

              if i am forced to be doing something else when the game starts i can tell you being able to start watching 15 minutes late is very very convenient.

          • Roar Guru

            February 9th 2012 @ 8:50am
            The Cattery said | February 9th 2012 @ 8:50am | ! Report

            “at a time more convenient than the time when the broadcast is made”

            The Federal Court is currently allowing a time-shift of 90 seconds, meaning the viewer can watch the TV show while the broadcast is being made – but clearly the exemption to the Copyright Act does not allow that.

            Both the explanatory memorandum to the Bill and the Copyright Council’s Information Sheet make it clear that the intention of the exemption is to allow you to watch the copy at a later time, NOT while the original broadcast is being made.

            • February 9th 2012 @ 8:54am
              Boomshanka said | February 9th 2012 @ 8:54am | ! Report

              The “explanatory memorandum to the bill” and the “Copyright Councils Information sheet” are not law and therefore an appeal would not be based on these documents.

              With respect: What words / section in the act are sufficient for an appeal to be successful?

              • Roar Guru

                February 9th 2012 @ 9:37am
                The Cattery said | February 9th 2012 @ 9:37am | ! Report

                Boomshanka
                I repeat, for the 3rd or 4th time, the key words, in the actual legislation:

                “at a time more convenient than the time when the broadcast is made”

                that means: making a copy to watch at another time and NOT during the time that the broadcast is made – it’s absolutley clear cut – the Federal Court’s interpretation was wrong, because it is effectively saying that watching the copy near-live is a different time to when the broadcast is made, and quite clearly, that does not represent a different time.

                The clear intention of the exemption is to allow a viewer to watch the copy at a later time. The exemption is there so that you can watch a show you wanted to watch because you weren’t able to watch while the show was on.

                The explanatory memorandum to the Bill explains what both the Government and Parliament meant by the words, which would normally be considered as influential by the Courts in interpreting legislation.

                The Copyright Council information sheet clarifies it again what the intent of the Government was, and certainly reinforces Government policy on the question.

              • February 9th 2012 @ 9:48am
                Boomshanka said | February 9th 2012 @ 9:48am | ! Report

                TC

                The Federal Court did not get it wrong. Their is NO requirement that one has to wait until the end of the broadcast before watching the material.

                Time shifting technology existed well before the Copyright Amendment Act. Are you saying that all the DVR’s, PVR’s and Foxtel’s IQ sold or leased since are all in breach of this legislation?

                In fact if the proposed amendments that are being banded around will affect leased equipment (such as Foxtel’s IQ or the Mystar box) as they are arguing an amendment should be made around the individual owning the device. If the OPTUS device is deemed illegal than subscription TV would need to look at its model.

              • Roar Guru

                February 9th 2012 @ 9:56am
                The Cattery said | February 9th 2012 @ 9:56am | ! Report

                Boomshanka
                Once again, the starting point is that ALL copies of TV shows are an infringement of copyright.

                The Copyright Act has an exemption to all inviduals to take a copy to watch “at a time more convenient than the time when the broadcast is made”.

                If you are watching the broadcast while the broadcast is occurring, then that is clearly contrary to the wording in the Act, and it’s most definitely contrary to the Government’s and Parliament’s intention when that amendment to the Act was introduced in 2006.

                That’s the time-shifting aspect, we then have the issue of what is giving Optus the authority to hold material on their servers to which they have no copyright – so even if the Court upholds the interpretation that a 90 second delay in watching the copy you have made fulfils the conditions of the exemption granted by the Copyright Act, I can’t see anything that gives Optus the power to hold such a copy – they neither own copyright, nor are they themselves fulfilling the conditions of the exemption in the Copyright Act.

              • February 9th 2012 @ 10:04am
                Boomshanka said | February 9th 2012 @ 10:04am | ! Report

                Agree that copyright is still held by the creator (or whoever the copyright holder sold it to – no argument there), however as you and the legislation alludes to, exemptions are in place for individuals.

                If we watch the broadcast, whilst the broadcasting is taking place, then most people with a DVR in Australia are in breach. As mentioned above time shifting technology was well in place in 2006.

                Optus did not make the recording and cannot use the recording, the individual does;

                From: http://tmtblog.minterellison.com/2012/02/federal-court-finds-optus-tv-now.html

                1. When a user clicked the ‘record’ button to record a program, who made the film recording stored in the Optus’ data centre – Optus or the user?

                Rares J held that it was the user that made the recording.

                The rights holders argued that Optus had made the recordings because it owned and operated the complex system that picked up the free-to-air broadcast, recorded it in the four formats and subsequently streamed it. However, His Honour considered that fundamentally, the user was solely responsible for the creation of the films – the user decided whether or not create a recording. If a user did not click ‘record’, no recording was brought into existence. Rares J construed the word ‘make’ in section 111 as referring to the creation of a recording by initiating a process using equipment that records the broadcast to reproduce someone else’s content. Optus simply supplied the technology that allowed users to create the film recordings. His Honour considered that TV Now was analogous to the situation where a person uses a VCR or a DVR to record a television broadcast.

              • Roar Guru

                February 9th 2012 @ 10:11am
                The Cattery said | February 9th 2012 @ 10:11am | ! Report

                Once again, I believe that last point is contestable.

                The copy made for private use is no longer sitting on a piece of privately owned equipment in the home of the user intending to use if for private and domestic purposes.

                That copy is now sitting on Optus infrastructure.

                I don’t care who initiated the copy – I question whether Optus has a legal right to hold that copy – a copy of material to which they have no copyright.

                The specific exemption applies to individuals wanting to take copies to view at a later time – but how does Optus fall into that category of exemption? I’m not talking about the individual here – I”m talking specifically about Optus.

            • February 9th 2012 @ 8:57am
              Boomshanka said | February 9th 2012 @ 8:57am | ! Report

              The explanatory memorandum to the anti siphoning legislation says;

              “‘…events of national importance and cultural significance… be received by the public free of charge… This process should ensure, on equity grounds, that Australians continue to have free access to important events.’”

              Still doesn’t stop the hoarding or breaches of the intent. ie they have zero effect.

              • Roar Guru

                February 9th 2012 @ 9:40am
                The Cattery said | February 9th 2012 @ 9:40am | ! Report

                Boomshanka
                once again – this article is about the recent Federal Cout decision on time-shifting, and whether it was correct vis-a-vis the Copyright Act.

              • February 9th 2012 @ 9:49am
                Boomshanka said | February 9th 2012 @ 9:49am | ! Report

                So do “explanatory memorandums” have legislative effect or not?

              • Roar Guru

                February 9th 2012 @ 9:58am
                The Cattery said | February 9th 2012 @ 9:58am | ! Report

                Explanatory memoranda provide much information on the intentions of Government and Parliament when legislation is introduced, and Courts will naturally turn to them as an aid in interpreting legislation.

                Understanding the intentions of Parliament is important because they are the ones making the law – it’s the Court’s job to interpret the law.

                If the Government and Parliament are of the view that the Court’s interpretation is different to what their original intentions were, Government will draft a new Bill to amend the legislation, and present that to the Parliament.

                On this occasion, such an amendment is likely to get bi-partisan support.

              • February 9th 2012 @ 10:09am
                Boomshanka said | February 9th 2012 @ 10:09am | ! Report

                TC

                That being the case then have you actually read the Exploratory Memorandum from the Copyright Amendment Act 2006? I’d say the excerpt below blows your argument out of the water.

                Boomshanka!

                Amendment (17) Recording broadcasts for replaying at more convenient
                time

                27. This amendment substitutes a new sub-s 111(1).

                28. The effect of this amendment is to remove the requirement that a recording of a
                broadcast under s 111 must be made in domestic premises.

                29. This amendment provides greater flexibility in the conditions that apply to `time-
                shift’ recording. The development of digital technologies is likely to result in
                increasing use of personal consumer devices and other means which enable
                individuals to record television and radio broadcasts on or off domestic premises.
                The revised wording of s 111 enables an individual to record broadcasts, as well as
                view and listen to the recording, outside their homes as well as inside for private and
                domestic use.

              • Roar Guru

                February 9th 2012 @ 10:16am
                The Cattery said | February 9th 2012 @ 10:16am | ! Report

                Boomshana
                I disagree with you.

                My arguments are not about the right of the individual to take a copy, or to view those copies on a device of their choosing, and they are not about whether the individual views them in their house or outside of it.

                My two key arguments are:
                1. the user cannot watch a copy of the program while that program is running in real time – that’s a breach of the Copyright Act as it currently stands; and
                2. Optus cannot hold that material on its infrastructure – it has no authority to do so – that too is a breach of copyright.

              • February 9th 2012 @ 10:48am
                Boomshanka said | February 9th 2012 @ 10:48am | ! Report

                TC

                I’ll leave it at that.

                I believe the federal Court has produced an outcome in accordance with the Copyright Act (as I believe I’ve demonstrated here).

                I’m happy to let you believe otherwise. Last time I looked it’s a free Country, and we’re free to hold different views(or football codes – unless one lives in Victoria apparently LOL).

                Enjoy your football season on whatever platform you chose.

              • Roar Guru

                February 9th 2012 @ 1:39pm
                The Cattery said | February 9th 2012 @ 1:39pm | ! Report

                Boomshanka
                fair enough – thanks for your contribution.

    • Roar Guru

      February 9th 2012 @ 9:22am
      Redb said | February 9th 2012 @ 9:22am | ! Report

      Agree. The Govt will and should close the loophole it simply has not kept up with technology.

      The Optus cloud where it stores content it has not purchased and charges access, the most glaring omission.

      That aside, I still find it laughable that recording for personal use was somehow used to justify this blatant rip off. 99% of TV, DVDS, Foxtel, radio, internet is personal use. Broadcast FTA TV is still beamed into private homes for personal use but that content is owned by someone. The internet has to be considered a medium in its own right, not a shadowy vehicle for illegal copies/access of copyrighted material.

      There is a bigger picture to protect content owners or else everything eventually will be deemed free to copy due to the technology available now and in the future.

      • February 13th 2012 @ 12:17pm
        soapit said | February 13th 2012 @ 12:17pm | ! Report

        its the governing bodies that havent kept up with technology. 15 years since the internet has become commonplace and they’re only now starting to look at online telecast. as was said above if they get their online service right there’s no way anyone will want to use something like optus is offering.

        plus this is only games that are on free to air isnt it? the advertisers still get their ads broadcast on the optus version so where is the massive dollar hit telstra are talking about going to come from.

    • February 9th 2012 @ 9:38am
      Boomshanka said | February 9th 2012 @ 9:38am | ! Report

      Redb

      As with TC I think you’ve missed the point;

      The Act is clear on this, its been tried in court and as the law stands it is legal.

      I personally pay Optus for lease of cloud space and use of a virtual DVR for my personal use.

      I agree with your comment that even the content that is beamed on broadcast TV is owned by someone, but as the copyright act stands at the moment I can time shift or record programs for viewing at a convenient time.

      Further legislative change is not required. The root cause of this is actually the anti siphoning act which destroys sport codes right to maximise revenue by insisting that programs are sold to FTA Networks first.

      I reckon we’d agree that common sense would see Sporting bodies (such as the AFL, NRL, FFA and CA) to be able to sell their content to whomever they want to. I’m still amazed the sporting bodies aren’t demanding changes to this outdated piece of restrictive legislation that if repealed would remove this problem altogether.

    • February 9th 2012 @ 11:29am
      Gareth said | February 9th 2012 @ 11:29am | ! Report

      I don’t really see the issue. I don’t think the “when the broadcast is made” line is intended to cover the entire length of the program, and the acceptable time delay seems to be understood as 90 seconds.

      But regardless of the ins and outs of the legislation, which is well argued on both sides above, If Telstra can’t provide a product that is significantly better than a DVR playback of 2/3 delayed telecasts packed with 40 minutes of ads, then they’re doomed to fail regardless of what Optus does. The only competitive product Optus can provide is near live playback of the first Friday night game. Of the rest, the second Friday game telecast is delayed by two hours; the sunday game is delayed by one. The other five games aren’t even broadcast on FTA.

      I repeat – if Telstra can’t use their exculsive rights to provide something better than that, they’re never going to succeed.

      • Roar Guru

        February 9th 2012 @ 11:40am
        The Cattery said | February 9th 2012 @ 11:40am | ! Report

        Gareth

        good points raised above, thanks.

      • February 9th 2012 @ 11:41am
        Ian Whitchurch said | February 9th 2012 @ 11:41am | ! Report

        Gareth,

        Part of what Optus can offer is the ability to live in a non-code state and get access to near-live footy.

        Yes, you will need to fib about your address, but there is a significant market of people who live in SA, WA, Victoria and Tasmania who want to watch league, or in Queensland or NSW and want to watch AFL.

        • February 9th 2012 @ 11:47am
          Boomshanka said | February 9th 2012 @ 11:47am | ! Report

          This is a market that Telstra have been unable to assist with.

          When Setanta went bust in the UK in 2009, Telstra came to the rescue and allowed viewers in the UK to watch live NRL via Bigpond. Unfortunately they were and are still not able to assist those in Vic, SA, WA or Tas blackspots.

        • Roar Guru

          February 9th 2012 @ 12:27pm
          The Cattery said | February 9th 2012 @ 12:27pm | ! Report

          I can understand why some consumers would want to do that, but the fact that you need to use a false address sort of underscores the point that we are talking about copyright infringement – which is my sole focus in this article – it’s not written from the consumer’s perspective and what their preferences are (and at the end of the day, we will take everything free of charge if its available).

          As an example, I presume Boomshanka lives in Melbourne, and only gets an NRL game from midnight onwards. The current Copyright Act allows him to take a copy of that, and watch it the following day, or whenever he wants – that’s precisely what the time-shifting exemption is all about – watching a copy of a TV program at a more convenient time (the exact wording in the Act).

          Of course most sports fans want to watch it live, or near-live, and not 18 hours later – and I understand that as well, but if Boomshanka is not able to take a copy directly from the TV – then clearly he is infringing copyright by getting the vision by another means.

          In the Boomshanka case (let us call it the Boomshanka precedent), we’re not even arguing anymore about whether the 90 seconds constitutes time-shifting, it becomes a question of whether Optus is acting as a broadcaster or not, and if it is, it is doing it without owning the copyright.

          • February 9th 2012 @ 10:22pm
            Dean - Surry Hills said | February 9th 2012 @ 10:22pm | ! Report

            Are Foxtel and Telstra going to take legal action against themselves for the very same infringements they are going after Optus for ?
            Currently the Telstra/ Foxtel IQ set tops, have about a one second delay on broadcasting channels 2,7,9,10,and SBS . The very device that allows viewing of this ever so slight time-shift also enables recording, playback, live pause, and viewing for later times of these FTA stations. This device and its associated equipment also acts as the antenna and receiver for those with poor signals or old technology who can’t gain decent FTA digital signals, or adequate analogue reception.
            Considering that all Australian Citizens are co-owners of both the ABC and SBS – does this not then arm the public with the same ammunition that Telstra is crying fowl about ?
            Should Optus be taking similar action over sporting events that it has sponsored where IQ devices have enabled people to time-shift, record, and breach copyright?
            Should the public not take Foxtel and Telstra to task for the very same infringements?
            Maybe everyone concerned should just let sleeping dogs lie.

            • Roar Guru

              February 9th 2012 @ 10:57pm
              The Cattery said | February 9th 2012 @ 10:57pm | ! Report

              Dean
              there’s a lot to go through there.

              Firstly, if someone owns the copyright, and wants to allow someone else to copy that material (as happens with the IQ), then clearly there is no legal issue.

              Can you access 7, 9 and 10 on Foxtel? (I’m only able to access ABC and SBS)

              Anyway, the Copyright Act seems pretty clear to me, you aren’t meant to be watching the copy while the broadcast is still on, the intention of the legislation is that you are taking the copy to watch at a later time.

              Government and its authorities are owners of intellectual property and will generally take a less aggressive stance to people using their IP – unless you are exploiting it for commercial gain.

              As one example, from many to choose from, if you went to the Parliament of Victoria website, and clicked the copyright link at the bottom of the page, you would get the follwing message:

              This website is copyright. This includes the content and design of work on the site. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth).

              The Parliament of Victoria encourages visitors to the site to download and display its copyright material for personal, non-commercial use, for research or study, or use within your organisation. For reproduction or use of the Parliament’s copyright material beyond this, permission must be sought from the Presiding Officers of Parliament. To request such permission, please email your request to info@parliament.vic.gov.au and include your name, address, phone number and a brief description of your intended usage of the information you are requesting.

              Requests to reproduce legislation should be directed to the Office of the Chief Parliamentary Counsel.

              In other words, ok to reproduce their material – within certain limits.

              So just because you are a citizen of a particular body politic – that of itself doesn’t give you any special rights as far as copyright goes.,

              Regarding Telstra, I did hear the other day that given the Optus decision, they weren’t about to fork out any money to get the online rights to this year’s Olympics, but would do precisely what Optus are doing.

              So yes, you are right, we will soon end up in a situation where everyone is pinching each other’s content for free – but have you thought about where that is likely to lead?

              • February 10th 2012 @ 8:50pm
                Dean - Surry Hills said | February 10th 2012 @ 8:50pm | ! Report

                FTA stations appear on my Foxtel here in Sydney, as channels 100, 102, 104, 107, and 110 in that order for 9, ABC, SBS, 7, and Ten, with Channel Nine receiving poll position over all other Foxtel and FTA stations. No system is currently in place to access the other digital stations through a Telstra/ Foxtel set top box, and therefore one needs to install a separate antenna and coaxial cable to receive stations such as GO and GEM. You must also obviously change the input mode on your television set to DTV to receive these signals. Foxtel has cleverly removed output sources from the rear of their units which prevent people from using alternate devices to record shows for later viewing. Most people used to use a VCR or DVD recorder – now you are forced to use the IQ built-in hard drive for these purposes.
                Another irk from me is that they have also removed the audio source outputs from the rear which means you have to be geared up with an amplifier that has multiple inputs to easily have stereo or surround sound when switching between Foxtel and FTA/ Video/ DVD. A simple stereo with an audio in-line, is no longer good enough, unless you want to keep pulling out cables and swapping them around.
                When the IQ box was released, there was obviously a high amount of thought-input placed into the process of paying customers being able to record, live-pause, rewind, and fast forward copyrighted programs currently owned by Pay Television networks. What about the programs not owned by them that appear on FTA ? What I’m alluding to is no different to what Telstra is remonstrating about. The IQ time-shifts are between 1-2 seconds, because Foxtel/ Telstra receives a FTA signal,which they then store and process, and retransmit through an alternate source via satellite and/or fibre optic cable. They are without doubt breaking the very same copyright infringement that they claim Optus is.
                Optus are a major sponsor and/or contributor to a host of sporting and cultural events that are televised on FTA. Both Foxtel and Telstra breach these copyright laws when they allow their customers to time-shift, record, and playback these programs through IQ devices which ALWAYS remain the property of Foxtel/Telstra.
                Executives at Telstra/Foxtel understand that if they were to remove the FTA stations from their IQ set top devices, then people would possibly watch a lot less Foxtel as they develop a hatred of switching between input signals on their television (and stereos in some instances such as mine) to receive FTA. I know that when I’ve switched to FTA to watch something that’s broadcast in High Definition on a station such as GEM, then there’s the likelihood that I will channel surf and remain on FTA- DTV – and that’s not good for Foxtel/Telstra advertising revenue !
                Which pot is calling the kettle black now ?
                As I stated the first time around – all parties concerned should let sleeping dogs lie.
                I doff my hat to the judge who made the initial ruling – he obviously has much foresight, and can see the events that might unfold if the two tribes go to war.

          • February 9th 2012 @ 11:16pm
            Queensland's game is rugby league said | February 9th 2012 @ 11:16pm | ! Report

            “Of course most sports fans want to watch it live, or near-live, and not 18 hours later – and I understand that as well, but if Boomshanka is not able to take a copy directly from the TV – then clearly he is infringing copyright by getting the vision by another means.”

            Then good for him! I’m glad he’s able to get one over the rugby league hating, AFL, loving GTV!

            GTV have no one but themselves to blame for this. IF they had have shown the game live on GEM or Go! then there would be no need for rugby league fans in Victoria to turn to Optus Now. If the NRL had have had the guts to stand up to GTV and force them to screen it into Victoria at the same time as it is shown in QLD and NSW then people would gladly watch it on Nine.

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