One-nil to Optus who has just won a major case against sporting bodies and Telstra, giving them the right to broadcast free-to air content on delay.

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The NRL, AFL and Telstra challenged Optus’ TVNow service in court last year claiming it infringed on copyright.

However, Optus did not infringe copyright as per the time-shifting provision contained within the (amended) Copyright Act, Justice Steven Rares ruled in Sydney’s Federal Court today, reports Fairfax Media.

This ‘time-shifting’ provision allow users to record and playback material, which corroborated with the Optus service, according to today’s judgement.

Telstra paid millions to the sporting bodies to get exclusive broadcasting of rugby and Aussie Rules matches, which was thrown into disarray after Optus launched the free-to-air playback service in July, with only minutes of delay after the live broadcast, which it didn’t pay a penny for.

The telco also threatened to pull out of the deals with both AFL and NRL, jeopardising a major source of income for both leagues.

”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.

“I found that such a recording or film was made by the user to watch it at a time he or she considered to be more convenient than when the live broadcast occurred, even if only by minutes.”

However, the 1968 Copyright Act, amended in 2006, before the advent of online broadcasting and now jeopardises the ‘exclusive rights’ Aussie TV stations pay millions for access to and means any online operator can show content via a record and playback service. 

However, up until now, the Act was open to interpretation in the era of the Net and could throw the whole notion of copyright into disarray. 

The 2006 amendment allowed for users ‘to enjoy legitimate copyright material in some circumstances without breaching the law,’ according to the Attorney General’s website.


Optus lawyers argued the TVNow app, available to mobile and Internet customers, was simply a modern day version of the video recorder, and was not a broadcast per se, as an individual recording was made for each user.

Telstra, the AFL and NRL are likely to appeal the decision, but the decision now means Optus customers are free to watch slightly delayed coverage of rugby and AFL, within minutes of Telstra users.

And Optus spokesperson said it was Optus “extremely pleased” with today’s decision.
“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, ” said Clare Gill, General Manager Corporate and Government Affairs.
The telco also branded the outcome “a major win for consumers, innovation and the law” and said the time shifting capabilities of the service was “no different” to many other personal video recording services available like TiVo, Play TV, Telstra’s T-Box and Foxtel IQ.
“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 added.

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