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Singtel Optus v National Rugby League (No 2) - Summary - 1.2.12

Singtel Optus v National Rugby League (No 2) - Summary - 1.2.12

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Published by James Hutchinson

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Published by: James Hutchinson on Feb 01, 2012
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04/13/2014

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Singtel Optus Pty Ltd v National Rugby LeagueInvestments Pty Ltd (No 2)[2012] FCA 34RARES J
SUMMARY
In accordance with the practice of the Federal Court in some cases of publicinterest, importance or complexity, the following summary has been prepared toaccompany the publication of the Court’s reasons for judgment. This summaryis intended to assist in understanding the outcome of this stage of the proceedingand is not a complete statement of the conclusions reached by the Court. Theonly authoritative statement of the Court’s reasons is that contained in thepublished reasons for judgment which will be available on the internet athttp://www.fedcourt.gov.autogether with this summary.
 
Singtel Optus Pty Ltd v National Rugby LeagueInvestments Pty Ltd (No 2)[2012] FCA 34RARES J
SUMMARY
The Australian Football League (
AFL
) and National Rugby League partnership(
NRL
) own the copyright in broadcasts made on free to air television of games played between teams in their respective competitions. Telstra has an exclusive licence fromthe AFL and NRL to exploit free to air broadcasts of live and pre-recorded AFL and NRL games on the internet and mobile telephony. The AFL, NRL and Telstra, whichI will call “
the rightholders
”, have claimed that the applicants in these proceedings,which I will call “
Optus
”, have breached their copyright in broadcasts of a number of AFL and NRL games made in September and October last year.Optus began offering a new service called “
TV Now
” in July 2011 to its private, aswell as small to medium business, customers. The service gives a user the ability torecord free to air television programs, including AFL and NRL games, and play them back on any one of four compatible devices, namely, PCs, Apple devices, Androiddevices and 3G devices.Optus has established a complex recording system to operate the TV Now service. If a user of its service clicks the “record” button for a program in the service’s electronic program guide, Optus’ equipment records that program individually for each user infour different formats (i.e. one each for PCs, Apple, Android, and 3G devices). Thus,Optus’ system made four copies of each broadcast for every user of the TV Nowservice who clicked “record” for an AFL or NRL game. These copies were stored inOptus’ NAS (network attached storage) computer in its data centre. The user canview the recording in the 30 days following the time of the original broadcast. Whena user clicks “play” on his or her compatible device, Optus’ data centre streams thecopy of the program in the appropriate format to that device so that the user can watch2
 
it. However, the streamed copy is not downloaded to the users’ device. And, userswith Apple iPads or iPhones can watch a program selected for recording “almost live”within about two minutes of the commencement of the actual free to air broadcast.Users with other compatible devices (PCs, Android and 3G devices) can only watch arecorded program after the broadcast had finished.Optus began these proceedings claiming that the AFL and NRL had made unjustifiedthreats against it, within the meaning of s 202 of the
Copyright Act 1968
(Cth). TheAFL and NRL claimed that the TV Now service infringed their copyright in broadcasts of AFL and NRL games. They also said that they would seek to restrainOptus from continuing to provide its TV Now service. The AFL and NRL have now put these matters forward as the basis of their cases. The Court added Telstra as a party to enable it to assert its similar claims as an exclusive licensee.The central question with which this judgment is concerned is whether Optus, byoperating its TV Now service, infringed the copyright interests of the rightholders inthe free to air broadcasts of some live and pre-recorded AFL and NRL games.The rightholders alleged that when Optus’ equipment made cinematograph films, (i.e.copies or films) of the broadcasts of the games, within the meaning of the
Copyright  Act 
, Optus infringed their copyright in these broadcasts. The rightholders also allegedthat Optus later communicated the recordings or copies to users of the service whenthey viewed these on their compatible devices.Optus contended that each user of the TV Now service, rather than it, had recorded, or made the recording, and played it without any infringement of copyright. Optusrelied on an exception in s 111 of the
Copyright Act 
. In essence, the exception allowsa person to make a film, or copy, or recording of a broadcast solely for his or her  private and domestic use by watching or listening to the material broadcast at a timemore convenient than the time when the broadcast is made. If the person does make acopy in those circumstances, then the making of the recording will not infringecopyright in the broadcast.3

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