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.
The Cattery
Roar Guru
As I predicted over two months ago, the decision has gone with the Copyright holder (AFL and NRL), and Optus has been ruled has having breached the Copyright Act. http://www.afl.com.au/news/newsarticle/tabid/208/newsid/134205/default.aspx
Boomshanka
Guest
That was the alternative view TC. What Justice Edmonds did, was to rule "that Mr Demetriou's comments to a newspaper that Optus's behaviour is "akin to stealing" was not misleading or deceptive because "it was clearly a statement of Mr Demetriou's opinion and, again, was honestly held. It was not and did not purport to be a statement of fact."
The Cattery
Roar Guru
Demetriou has had a small win in the courts against Optus: http://www.smh.com.au/business/optus-bid-to-silence-afl-boss-dismissed-20120228-1tzs6.html Optus has failed in its bid to silence AFL chief executive Andrew Demetriou after he accused the telco of "stealing" and "lifting" content from the league for its mobile TV service. Optus was also ordered to pay the AFL's legal costs... "Alternatively it was nothing more than, and could be understood as nothing more than, a vernacular or shorthand description of what Optus is incontrovertibly doing."
Jaceman
Guest
I thought this discussion helped... http://www.thepowerindex.com.au/analysis/afl-fortunes-under-a-cloud?utm_source=The+Power+Index&utm_campaign=471a7a3a45-The_Power_Daily_13_Feb_2012&utm_medium=email
soapit
Guest
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.
soapit
Guest
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.
Whites
Guest
Don't forget the original Universal vs Sony Betamax.
Boomshanka
Guest
Its not TC's interpretation of the Act, it's his reading of the Copyright Council's Information Sheet that set him on the wrong path.
Whites
Guest
How about this scenario? Would the following be allowed under the Act- 1.Use a phone App to get your Sony DVR to record a program. 2.Have a function that allows the Sony DVR to stream that recording from the device in your home to the App on your mobile phone or iPad. 3.Start watching the recording with a 1-2 minute delay. Such a set up seems perfectly fine to me. Remember, I totally disagees with TC's interpretation that the Act requires you to watch a recorded program only after the original broadcast has been completed. EDIT:Thanks Boomshanka, as I kind of suspected the product already exists.
Boomshanka
Guest
Whilst coming from the American Courts the following provides an insight into similar battles there (which we happen to share a Free Trade Agreement - that extends much of their Copyright nonsense to here so quite relevant); Enjoy, as the outcome is definitely in the consumers favour; http://en.wikipedia.org/wiki/Cartoon_Network,_LP_v._CSC_Holdings,_Inc. After Cablevision announced the RS-DVR (Remote Storage Digital Video Recorder) in March 2006, several content providers including 20th Century Fox, Universal Studios, and Walt Disney sued Cablevision in federal district court. The content providers sought a permanent injunction that would effectively prevent Cablevision from implementing the system. The content providers prevailed at the district court level, and Cablevision appealed. On August 5, 2008, the 2nd U.S. Circuit Court of Appeals, in Cartoon Network, LP v. CSC Holdings, Inc., reversed the lower court decision that found the use of RS-DVRs in violation of copyright law. It agreed with Cablevision's argument that a RS-DVR should be treated essentially the same as a customer owned DVR. Only the location of the DVR really differs. Certain content providers began the process of appealing to the U.S. Supreme Court, seeking cert in late 2008. The Supreme Court delayed hearing the case and instead referred it to the United States Solicitor General's office for the federal government's opinion on the case. In June 2009 the US Supreme Court refused to hear a final appeal in the Cablevision remote DVR case, thereby bringing the years-long litigation to a close. As the Cablevision litigation had a favorable outcome, the future looks bright for RS-DVR systems. Many major U.S. cable companies are expected to implement their own RS-DVR systems, as RS-DVRs allow wider access to DVRs at a lesser cost to subscribers and innovative new methods of advertising that appeal to advertisers. All this years before Telstra signed up with the AFL for "exclusive internet content" Also worth a look is Bamboom which is providing cloud RS-DVR technology. http://www.youtube.com/watch?v=Dmyy2S3y7XM Enjoy!
Boomshanka
Guest
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://www.youtube.com/watch?v=nOTjB2lPUsw http://au.playstation.com/playtv/ Sony here are providing the infrastructure to allow an even better option than a 2minute delay. Don't see Sony as an official provider of AFL content. Are we going to see Sony approached for a similar "copyright breach"?
The Cattery
Roar Guru
Is it merely just server space? Is it the equivalent of you dropping off a copy in drop box to look at later? (something we can all do now if we want, with no ramifications whatsoever). No - in fact Optus' service appears to go well beyond just providing server space - it allows you to watch the TV show near-live - how is it possible that a company without the rights can allow you to watch a TV show near live? - that's certainly worth an appeal. I've also previously argued that if the Optus service allowed you to take a copy for later viewing, consistent with the Copyright Act, i.e. to view AFTER the TV show has finished - then most probably that wouldn't be contestable.
Boomshanka
Guest
The individual falls within that exemption because as Rares J held, it was the user that made the recording. OPTUS are merely providing a service and charging for server space and data access. They do not provide Free to Air broadcasts.
The Cattery
Roar Guru
Yes - and all of that is contestable - which is precisely why it has gone to appeal. As Simmo says, Optus is receiving the broadcast feed and copying it onto its servers - the question remains whether Optus has infringed coypright by allowing that. The 2006 exemption to the Copyright Act allows individuals to take copies under certain circumstances - but does Optus fall within that exemption? I just can't see how it does, especially when it is earning revenue from having done so.
Boomshanka
Guest
Simmo also says "The appeal will centre around para 63 of the FC judgment and who is the person who makes the recording – the person who clicks record? or the person who owns the equipment that receives the broadcast and the equipment that does the copying? Like the judgment says at para 62, it’s a chicken-and-the-egg scenario. I think it could go either way." As stated before (agreeing with Simmo above); Judge Rares found that 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."
The Cattery
Roar Guru
Whites none of my argument has been about the device, and even the Council's Information Sheet says the copy doesn't have to be viewed inside the user's own home. My argument is about the intent of the 2006 exemption to the Copyright Act, which says that a copy is allowed to be made for viewing at another time. The second string to my argument is whether Optus is afforded any such exemption. As stated by Simmo on another thread: IMO there’s another way of interpreting the situation. In the facts it makes clear that Optus receives the FTA broadcast, not the end-user. Some of the commentary about the place makes the analogy that this ordinary cloud computing services but this is different because the end-user hasn’t made a copy of a FTA broadcast and then uploaded it for storage and later retrieval. It’s a different scenario. Optus has received broadcast and copied it for provision to its customers. So because it’s Optus making the recording, it can be argued that Optus’ actions should be at the centre of the debate, not the end-users’. I couldn't have put that better myself.
The Cattery
Roar Guru
Midfielder I have already been involved in asking Youtube to take down copyright material, and they have done so - in fact stacks of copyright material gets taken down, every single day of the year - lots remains because there is so much out there - but don't believe for one second that no action ever takes place. On another thread, Simmo has just point forward this legal opinion: I can see the FFC possibly overturning the decision on the following basis: The judgment at first instance turned on the interpretation that Optus’ making available a recording triggered by the end-user did not amount to a distribution [per para 111(3)(d)] because it was the end-user making the decision to copy and only the end-user can access the copies accessible via their account. Prima facie that’s a fair interpretation of ss111(2) (that’s my summary; it’s not as important as the next bit). IMO there’s another way of interpreting the situation. In the facts it makes clear that Optus receives the FTA broadcast, not the end-user. Some of the commentary about the place makes the analogy that this ordinary cloud computing services but this is different because the end-user hasn’t made a copy of a FTA broadcast and then uploaded it for storage and later retrieval. It’s a different scenario. Optus has received broadcast and copied it for provision to its customers. So because it’s Optus making the recording, it can be argued that Optus’ actions should be at the centre of the debate, not the end-users’. Optus makes the copies, Optus makes available the copies to it’s own paying customers. It can be argued it’s a straight up breach of para 111(3)(a) – selling a recording of a copyrighted film.
Midfielder
Guest
TC Youtube, google, yahoo, askjeevs in fact all the big search engines as well as the music sharing sites have the same argument as OPTUS ... arguably were OPTUS got the idea.... The argument is we supply something how it is used is beyond our control... it is a simple argument but has in various courts around the world proved difficult to break down... Essentially is has nothing to do with copyright .. much more how people use technology ...
Whites
Guest
The Act doesn't make distictions like that. Try and forget you ever read the Copyright Council information sheet. The Act and memorandum, as they are written, seem to provide a fairly broad range of options to record and watch programs for personal use. Whether that be on a portable digital device inside or outside of the home. So far the court has agreed with this position.
The Cattery
Roar Guru
I'm not sure if that proves anything, to be honest.