Win for Optus TV Now Service

The Federal Court yesterday found in favour of Optus in Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34 (1 February 2012) on copyright issues concerning the Optus TV Now Service.

The Optus TV Now Service is a recording system to allow users to record free to air programs and play them back on compatible devices, such as a PC, Apple, Android or 3G device.

Optus relied on the “time shift” defence in the Copyright Act, which permits a person to record a broadcast for private and domestic use for viewing at a more convenient time. The defence permits the use of devices such as video recorders, but it has not previously been applied in the context of a cloud recording service. One key finding was that it is the user, not Optus, who makes the relevant recording when using the service.

The decision undermines the value of Telstra’s $153 million investment in internet broadcasting rights for AFL matches, so an appeal is likely.