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12 Sep 2012
By Jane Perrier
Sep
12
2012

Kicking Goals into the Clouds – AFL, NRL & Optus (TV Now)

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Editors note: Jane Perrier, a lawyer at Telstra, blogs about why she’s optimistic about the future of both cloud computing, and footy in Australia on the back of the recent High Court ruling against Optus.

Last Friday the High Court said ‘no’ to Optus’ special leave application, in relation to its Optus TV Now service.

At Telstra, where growing both our Cloud and Media businesses are strategic priorities, we view the High Court’s decision as a positive one, both for the protection of intellectual property rights and for cloud computing – the decision provides welcome clarity for cloud operators, while at the same time recognises the delicate balance of interests which copyright law seeks to protect.

Telstra AFL AppThere’s been a lot of online discussion about the decision.  The issues it deals with are ‘live’ and as many of the commentators have noted, will be examined in detail in the Australian Law Reform Commission’s ‘Copyright and the Digital Economy’ Inquiry. As a ‘Clever Australian’ with major interests in both cloud computing and intellectual property, Telstra is looking forward to continuing to contribute to the discussion.

Where the Law Stands

With the High Court’s refusal to allow Optus’ appeal, the Full Federal Court’s decision stands on key matters relating to copyright infringement and the time shifting exception in s111 of the Copyright Act 1968.  On these matters the FFC essentially found that:

  • Optus (either on its own or in conjunction with its customers) was responsible for making unauthorised copies of certain AFL and NRL TV broadcasts, which were then stored on Optus’ network for later streaming to its customers; and
  • the time shifting exception in s111 doesn’t protect entities that make copies of broadcasts on a commercial basis for a third party.

The Legal Implications for Cloud Computing

The FFC’s decision was based on the nature and operation of Optus’ technology and the relationship between Optus and its customers.  The FFC said that different technologies and relationships to that employed by Optus may lead to different conclusions as to ‘who makes the copy’.  It therefore doesn’t follow from the decision that cloud operators will automatically be found to have copied content that is uploaded to their services – liability will depend on what the cloud operator does and how the operator does it.

In relation to the time shifting exception, the FFC considered that while it was intended to allow private copying by individuals, it wasn’t the place of the Courts to extend the exception beyond those confines.  This means that the personal use exceptions won’t assist a cloud operator to offer a commercial service to customers; even if the same acts done by the customers themselves might be covered by the exceptions.  The Optus TV Now service was making copies of the footy broadcasts for the purpose of commercial gain –  Optus was charging its customers for its service.  In these circumstances, the cloud operator needs permission, or a licence, from the intellectual property rights holder.  The FFC made it clear that private copying, and the kind of commercial copying that the Optus TV Now product was engaged in, are distinguishable.

What the Future Holds

In our view, the FFC’s conclusions are consistent with the intent of copyright to balance the interests and wants of individuals, while sustaining and growing new technologies and rewarding commercial and creative endeavours.

Protecting intellectual property allows rights holders to invest in improving the quality of their content.  The investments Telstra has made under its agreement with the AFL have produced a great product for AFL fans.  The Telstra AFL live app has everything an AFL fan could want including live games, live score updates, radio broadcasts of the games, team lists and player profiles, match previews and post game reviews all free and unmetered.

The legal certainty offered by the FFC’s decision will allow us to keep investing in these services for our customers, while the balance that this decision strikes will also provide Telstra (and our competitors) with the freedom we need to continue to grow our innovative cloud business.  At the full time siren of the Optus TV Now matter, we’re optimistic about the future of both cloud computing, and footy in Australia.

What are your views?

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1 Comment

  1. Kay says:

    I note you say ” It therefore doesn’t follow from the decision that cloud operators will automatically be found to have copied content that is uploaded to their services – liability will depend on what the cloud operator does and how the operator does it.”

    So if a user makes a copy of a file, utilising the cloud provider’s user interface, that copy can only be made if both the user’s and the cloud provider’s involvement. How will cloud operators know whether this case applies to deem them as joint creators of the copy?

    In other words, can you give concrete examples of when cloud operators will NOT be held to have jointly made copies of any material that its users elect to copy to the cloud services? And if the line is not clear, then how does this case provide ‘legal certainty’?

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