30 April 2012
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On Friday, 27 April 2012, the Full Federal Court delivered its decision in National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59, overturning Justice Rares decision, and finding that the TV Now service infringes the copyright of the AFL, NRL or Telstra.
The Full Federal Court found that Optus and the subscriber to the TV Now service acted in concert to copy to the NRL or AFL football matches. Whereas the subscriber may be able to rely upon the time-shifting exception in section 111 of the Copyright Act 1968 (Cth) (The Act) to avoid infringement, Optus cannot and was held liable for infringement.
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Arguments on appeal
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The central issue on appeal was by whom the copies of the television programs were made for the purposes of section 86(a) and section 87(a) and (b) of the The Act.
The trial judge said “to make” was to create something; that by using the TV Now service and determining what was copied and when it was copied the subscriber made the copies of the football matches. In that sense, the service offered by Optus was no different to a VCR or a person using a photocopier.
The AFL, NRL and Telstra argued that the trial judge disregarded Optus’ heavy involvement in creation of the copies, including that Optus:
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- designed and maintained the system including its automation;
- was responsible for ensuring that a copy was made following a subscriber’s request;
- ensured the service created four copies of the program upon any request from the subscriber; and
- performed the last act necessary for the recording to be made (ie by its server informing its recording controller that the request to record a program had been made by the subscriber).
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Optus argued that simply because it designed the TV Now service and gave it functionality did not necessarily result in it being the maker of copies of the program.
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Decision
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The Full Federal Court found that:
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- “To make” essentially means to create or produce a physical thing in which copyright subsists.
- The subscriber may click on a button to trigger a sequence of actions which results in copies of certain programs being recorded, but it does not necessarily follow that the subscriber alone made that recorded copy.
- The TV Now system has been designed in such a way that Optus is the ‘main performer’ in the act of copying.
- Even though the TV Now system is entirely automated, Optus’ role in making a copy (ie in capturing the broadcast and then in embodying its images and sounds in the hard disk) is so pervasive that it cannot be disregarded when identifying who did the act of copying.
- It is the concerted actions of both the subscriber (who instigates what is to be copied) and Optus (which effects the copying) which results in a copy being made of the broadcast football match.
- The copying by Optus was for commercial purposes and therefore it cannot invoke the exception in section 111 of The Act.
The Full Federal Court took a different view to the trial judge and found that Optus did not merely make available its system for the subscriber to use to copy the television program. The Court was of the view that Optus captured, copied, stored and made available for reward, the television programs to the subscriber.
The Court noted that at all times Optus retained possession, ownership and control of the physical copies made until they were deleted by either Optus (after 30 days) or the subscriber deleting them earlier. The copied program is streamed back to the subscriber when he or she wishes to watch it and no copies of the program were stored in the subscriber’s device in any permanent form.
As Optus designed, operated and maintained the TV Now service, and had some control over the copied material, it can be distinguished from cases such as University of New South Wales v Moorhouse (1975) 133 CLR 1. The Court likened the Optus TV Now service to the situation where a person engages a commercial photocopier to copy copyright material on their behalf rather than simply using a photocopy machine themselves.
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What you need to know
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This decision means that where automated technologies are used to make a copy of copyright material, the person who operates and maintains the wholly automated copying system (which is designed to respond to a third party command to make a copy) and retains some control of the copied material, will be treated as a ‘maker’ of the copied material. That maker may be directly liable for copyright infringement if such acts are done without the consent of copyright owner or are outside the scope of one of the exceptions in the The Act.
If the decision stands (and is not successfully appealed by Optus), consumers may have limited access to the latest technology to make copies of broadcast materials for their own private and domestic use.
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For further information, please contact:
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