Full Federal Court overturns decision concerning Optus’ TV Now service and finds in favour of the NRL and AFL

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As reported earlier in the year, Rares J of the Federal Court found in favour of Optus in a landmark copyright decision on the basis that subscribers to the Optus TV Now service (and not Optus) were responsible for making recordings of certain television broadcasts.

The Full Federal Court (Finn, Emmett and Bennett JJ) recently allowed the appeal to the above decision brought by the AFL and NRL, finding that it was Optus, or in the alternative, Optus and the subscriber, who made the recordings of the broadcasts, and that Optus could not rely on the defence available under section 111 of the Copyright Act (known as the “time shifting” or “private and domestic use” defence).

Although Optus was found to have infringed copyright in the live NRL and AFL broadcasts by allowing subscribers to its Optus TV Now service to view recordings of the broadcasts on PC’s, Apple devices, Android devices and 3G devices, the Full Federal Court concluded that different relationships and different technologies may well yield different conclusions to the “who makes the copy” question. Given the increasing popularity and functionality of Smartphones and other devices, similar questions of copyright infringement are likely to arise for consideration by the Courts.

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