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Optus trumps Telstra in war for digital PVR freedom

Football codes' case crashes, burns

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Optus has vanquished Telstra and its claims on a multi million dollar rights deal for the online broadcasting of National Rugby League (NRL) and Australian Football League (AFL) footage.

Telstra, the NRL and AFL have vowed that the matter is far from over and will appeal the landmark decisions. Using hackneyed sporting parlance AFL chief operating officer Gillon McLachlan said,"we maintain that the Optus action is a breach of copyright. However, we are only in the pre-season of this issue."

Following months of contention over Optus TV Now PVR digital recording service, the Federal Court ruled that Optus did not breach copyright by broadcasting matches via its new TV Now service.

Justice Steven Rares found that Optus' TV Now, which enables users to record matches to watch later on their smartphones and PCs, was effectively the same as recording matches on home video and digital recorders.

His finding supported Optus’ claim that its customers, not Optus, recorded the broadcasts - and this does not infringe any copyright, since time-shifting is endorsed in the Copyright Act. The AFL, NRL and Telstra were also ordered to pay Optus' legal costs.

Justice Rares is yet to decide on other key issues in the case, including that some Apple devices store files that contain sections of the match broadcasts, possibly constituting a breach of copyright.

"I decided that Optus' TV Now service did not infringe copyright in the broadcasts of the AFL and NRL games in the particular ways that the rightholders alleged," Justice Rares said in the judgement.

The AFL and NRL contend that the Optus service infringed their copyright by making copies of the match broadcasts and later communicating the copies to users of the service.

Under an exception in the Copyright Act, a person is allowed to make a copy of a broadcast solely for their personal use at a time more convenient than when a broadcast is made.

Telstra has forked out $AU153 million for its exclusive internet broadcast rights for both the AFL and NRL, covering the 2012 to 2016 seasons.

"We believe that protecting content rights is in the interest of Telstra, the sporting codes and sporting fans who ultimately benefit from the investments that flow from broadcast rights," Telstra spokesperson Craig Middleton said.

Optus launched the TV Now service in July 2011, allowing users to record free-to-air programs including NRL and AFL matches and play them back on a computer or smartphone.

Optus GM corporate and government affairs Clare Gill said that convergence was now upon us and Australians needed to ensure that they have the choice, convenience and flexibility to access content when and where they want.

“We were confident that the Optus TV Now product was well within the intention and the spirit of the Copyright Act and this was confirmed by today’s decision. Optus is putting control in the hands of the customer and is proud to advocate consumers’ rights when it comes to content consumption. The Copyright Act was amended in 2006 to allow this type of innovation and we are very pleased the court has confirmed this,” she said. ®

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