The AFL has vowed to take every legal avenue available to protect its multi-million dollar broadcast rights deal with Telstra, but its fight might take up to two years.
AFL chief executive Andrew Demetriou has warned Telstra’s rival Optus that its victory in the Federal Court allowing it to broadcast recorded matches on mobile platforms would be shortlived.
The AFL, NRL and Telstra will appeal the judgement which blurs the AFL’s $153 million deal with the telco and throws the NRL’s ongoing negotiations into jeopardy.
“We will have our day yet again. We will go through the proper legal processes and exploit all of our avenues through appeal,” Demetriou said.
“They can crow all that they like today, but this has a long way to play out.”
Demetriou said Telstra had indicated it would honour its five-year agreement. Telstra, however, could not confirm its commitment.
Copyright lawyer David Brennan believes even if the leagues and Telstra successfully appeal, Optus would then take it to the High Court which could restore the original judgment.
The ultimate action for the sporting codes and Telstra is for federal parliament to change the out-of-date legislation to keep up with technology and tighten up the exclusivity of broadcast deals.
But Mr Brennan says any change to the Copyright Act could take as long as two years to get through parliament, but the lobbying will begin immediately.
Although Telstra holds exclusive internet broadcast rights for the AFL and NRL, Justice Steven Rares ruled on Wednesday that Optus customers can record any free-to-air TV program and play it on mobile devices at a later time, even as soon as two minutes after the program begins.
Brennan said many issues in Justice Rares’ ruling were contestable.
“Until there’s an appeal, I don’t think anyone can be really confident as to what the law of the land is,” he said.
“If I was Optus I wouldn’t be building my house entirely on the strength of this judgement. Everyone involved would be prudent to wait until that is settled.”
Optus chief executive Paul O’Sullivan said the decision was about consumers’ rights.
“Yesterday’s decision continues to allow millions of Australians to record and play back free to air TV at their convenience – just as they have done since the VCR arrived in Australia and continue to do so today via emerging digital services like TiVo, Play TV and Foxtel IQ,” O’Sullivan said.
But Demetriou was adamant Optus was breaching copyright and jeopardising sports which rely on millions of dollars from broadcast rights.
“We are absolutely entitled to protect our content and exploit our content,” Demetriou told ABC radio on Thursday.
“What we do as a not-for-profit organisation is if we derive returns, we reinvest it into our code.
“We will do everything in our power, everything, to make sure that we protect our content, because that’s what it is, it’s ours.
“When you have a situation where Optus seek to try and use our content without ever undertaking one discussion with the AFL, that is where we say we think it’s a breach of our copyright.”
The NRL’s 2013-2017 agreement will be finalised this year, but the league is concerned the ruling will impact on cash strapped clubs desperately waiting for a windfall from a new deal.
Cricket Australia, which has a deal with Vodafone, said it will assess the ruling.
The Coalition of Major Professional and Participation Sports (COMPPS), a lobby group which represents the AFL, NRL, ARU, Cricket Australia, FFA, Tennis Australia and Netball Australia, said changing legislation was the most likely solution.
“Certainly key ministers are aware of the situation and the problems it creates for sport,” COMPPS executive director Malcolm Speed said.
Speed said coalition members have discussed the issue and will work out their response in addition to the appeal from the AFL, NRL and Telstra which is likely to be lodged within a week.
Jaceman
Guest
As for previous years and broadcasting deals, it is safe to assume that Foxtel did not acquire the rights – it almost certainly leased them off 7 & 10, or 9 (when it had the AFL) in order to comply with the licence condition. That’s why they have media lawyers. The events are listed, in item 4.1 of the Schedule to the Broadcasting Services (Events) Notice (No.1) 2010 (http://www.comlaw.gov.au/Details/F2012C00076). The Minister has been amending this every month or so to change the listing of events, to reflect what is happening in the real world. Australian Rules Football 4.1 Each match in the Australian Football League Premiership competition, including the Finals Series, except for: (a) all matches to be played as part of the 2012 Australian Football League Premiership competition, including the Finals Series but excluding the Grand Final. So, even if Channel 7 collapsed today and showed no games, Foxtel could show every game except the Grand Final, and comply with the licence condition.
The Cattery
Roar Guru
The biggest worry the AFL has at the moment is finding sufficient safety deposit boxes to stash the surplus cash.
Boomshanka
Guest
If I was the AFL, I'd be more worried about losing the $130 Million per annum from FOX Sport given the contract is in breach of the Broadcasting Act and this is a hell of a lot more clearer than the copyright debate; In Summary, the current law requires the Subscription TV licensee to not acquire rights to listed events unless national or commercial licensees hold them. Last time I looked Channel Seven hold the rights to four games each round. The other five exclusively held by FOX are in breach of the following; from: http://corrigan.austlii.edu.au/au/legis/cth/consol_act/bsa1992214/sch2.html Broadcasting Act 1992: Schedule 2, Part 6 Subscription television broadcasting licences 10 Conditions applicable to subscription television broadcasting licences (1) Each subscription television broadcasting licence is subject to the following conditions: (e) the licensee will not acquire the right to televise, on a subscription television broadcasting service, an event that is specified in a notice under subsection 115(1) unless: (i) a national broadcaster has the right to televise the event on any of its broadcasting services; or (ii) the television broadcasting services of commercial television broadcasting licensees (other than licensees who hold licences allocated under section 38C or subsection 40(1)) who have the right to televise the event cover a total of more than 50% of the Australian population;
Will McCloy
Roar Pro
The money earned for the code, as a non profit organisation, goes straight back into the code. That means advertising, keeping clubs afloat, sponsoring junior AFL, promoting the game. This means a better p[roduct for players, and for fans. $154 million dollars over 5 years - thats a huge benefit for AFL. To say that the system of online exclusivity - which is exactly the same as any broadcast deal - is not worth it as some miss out if they signed the wrong phone deal is short sighted in the extreme. That money goes toward strengtheneing our code. A long way towards it.
Boomshanka
Guest
I'm sure Telstra will be modifying their T Box appropriately as well. Your T-Box is how you watch movies and TV at home, with ease. Step inside a digital library of on demand movies, watch and record your favourite TV programs with the personal video recorder, sit back and relax. The T-Box even brings you a full range of internet TV channels and on-demand content. It’s time to entertain the whole family and its time to watch what you want, when you want. http://www.telstra.com.au/tv/tbox/
The Cattery
Roar Guru
Even in relation to those four games on FTA, just becuase they are for free, doesn't give anyone the right to publicly replay those images - they are still owned by the AFL. The AFL will argue that Optus is replaying those images without the approval of the AFL. Optus will argue that they are the equivalent of a DVD recorder - I wonder if that analogy will hold up under careful inspection.
The Cattery
Roar Guru
Yes, and it's contestable, that's why there will be an appeal, and failing that, a change to the legislation. This is not really about Optus and Telstra - in the scheme of things, they are neither here or there - it's about defining the limits of what's possible down the track and ensuring copyright holders are in a position to extract maximum value from their copyright, in particular, when the AFL eventually starts providing online content directly. Some people do not understand that there is a distinction between being able to circumvent copyright easily, and the legality of that act, i.e. just because you can do it from a technological perspective, doesn't make it legal - it's two separate arguments. There are points about this that remain contestable and open to legal debate, that's why there will be an appeal, and even within this case itself, the judgement doesn't rule on at least one important aspect about what Optus is doing.
Boomshanka
Guest
TC Optus is profiting from providing a PVR service. The content of which is determined by the consumer. As Judge Rares said in his summary; I considered that in substance this was no different to a person using equipment or technology in his or her 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 Singapore. http://www.austlii.edu.au/au/cases/cth/FCA/2012/34.html
The_Wookie
Roar Guru
TV isnt public domain. Copyright applies to all tv broadcasts.
The Cattery
Roar Guru
yes, you can record something for personal use, but you can't profit from that recording - that's what copy right is all about - Optus is profiting from content it doesn't own - that's the problem.
ItsCalledFootball
Roar Guru
As long as you have a digital tuner, you can watch and record any FTA program for free and you are not breaking any laws. The internet is even less regulated.
ItsCalledFootball
Roar Guru
The AFL need to protect their product and their deal with Telstra and so will continue with legal action even if they don't have a chance. Under current federal broadcasting laws, Optus aren't doing anything illegal. The internet is an international un-regulated form of media and is not restricted by any Local laws. The AFL would have a lot of trouble trying to stop anyone anywhere in the world recording a game of AFL on Australian FTA TV streamed on the web.
Dean - Surry Hills
Guest
Who cares if someone watches something that is already on free to air via an alternate device. The only fool is the person paying a fee for something that was initially free - - hmmmmm - wait a minute...............that sounds like Foxtel all over again !
Titus
Guest
There is no TV station and no one is rebroadcasting it. It is being put out for free into the public domain, in return for BIG advertising dollars, and the people who agree to watch the advertising and have their product sullied by advertising content are free to use it for their own personal enjoyment. Its not piracy to record and watch something that you own.
Jaceman
Guest
The law wont be cahnged till the convergence review finishes an internet regaulation is sorted which could take years. They could do an interim but it would be in the courts quick..
Jaceman
Guest
Depends whether it is on broadcast spectrum or not, if its picking up broadcast spectrum TV channels are getting more ad viwers - OK...Its the non broadcasting spectrum where no one is paying for it is the problem...
The Cattery
Roar Guru
Can rival stations show TV product owned by another station? Especially simultaneously when premiered. Generally speaking, I think the answer is no.
Jaceman
Guest
I think its called piracy unless you have an agreement with the content supplier. Optus is charging a fee to record stuff and the content provider has not agreed to this - simple... I am still waiting for O/s examples but alas no...
Titus
Guest
The device can record anything on FTA, Midsommer murders, Wipeout USA, whatever. Can any TV show start asking for a share of this money that Optus is making?
The Cattery
Roar Guru
I'm thinking along similar lines: I don't quite understand how Optus can generate revenue from a product they don't have any rights to. This is the aspect that is certainly contestable in an appeal.