Federal Court has it wrong on sports broadcast copyright

The Cattery 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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