Allens

Intellectual Property

Client Update: Leave to appeal Optus TV Now decision refused

10 September 2012

In brief: The High Court has refused leave to appeal the Optus TV Now decision which means that the Full Federal Court decision, which overturned the trial decision and prevented Optus from operating its TV Now service, stands. A review by the Australian Law Reform Commission may, however, make recommendations that see further changes to the law. Partner Andrew Wiseman (view CV) and Lawyer Rob Clark report.

Special leave application

Optus sought leave to appeal, to the High Court, the Federal Full Court's decision, which we have reported on previously. In the special leave application on Friday, the High Court refused leave to appeal, for two reasons. First, the appeal had insufficient prospects of success of overturning the Full Federal Court decision. Second, the proceedings did not involve a question of sufficient general interest to justify an appeal. The High Court seemed to regard the proceedings as very fact-specific, closing the door to a decision of more general application as to who the 'maker' of a cinematograph film was for the purposes of the Copyright Act 1968 (Cth).

This means that the Full Federal Court's decision concludes this high-profile dispute. The Full Court unanimously upheld the appeal from the first instance decision. It found that the TV Now service infringes Telstra's copyright in those television programs that it previously recorded and made available to its subscribers. It also found that the copies of the cinematograph films and sound recordings were made jointly by Optus and their subscribers, and that the 'time-shift exception' in section 111 of the Act was not available on the facts.

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Australian Law Reform Commission review


Despite the High Court refusing leave, the issue is not necessarily closed. The Australian Law Reform Commission (ALRC) is currently undertaking a review of copyright law in Australia, focusing on fair use and other rights to use copyright material without payment to the copyright owner. The s111 exception sought to be relied upon by Optus, dealing with private copying and time shifting, is one such exception.

In August this year, the ALRC released an issues paper seeking submissions on a wide variety of issues within the committee's ambit. In relation to the issues dealt with in the Optus TV Now trial, it asked two questions:

  • Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use, be freely permitted?
  • The time shifting exception in s111 of the Copyright Act allows users to record copies of free-to-air broadcast material for their own private and domestic use, so they may watch or listen to the material at a more convenient time. Should this exception be amended, and, if so, how? For example:
    • should it matter who makes the recording, if the recording is only for private or domestic use; and
    • should the exception apply to content made available using the Internet or Internet protocol television?

The closing date for submissions to the committee on the issues paper is 16 November 2012.

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Implications

As previously discussed, the Full Court decision acknowledged the substantial and conflicting interests involved in the Optus TV Now proceedings. Much of the commercial concern about the trial decision was that it caught existing commercial players off-guard, and changed the calculus of the value of existing rights. The High Court, in rejecting leave to appeal, has effectively stepped back to allow the question to be answered within the legislative sphere. That process will be aided by the findings of the ALRC review, which will allow a consultative process with relevant stakeholders.

For further information, please contact:

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