Earlier this year, Optus’ TV Now subscription service was suspended following a decision by the Full Court of the Federal Court in Australia that its use infringed copyright in broadcasts of NRL and AFL football games. We wrote about that decision in an article
published on our website on 30 April 2012.
Optus sought leave from the High Court to appeal this decision, but the High Court has now refused to grant that leave on the basis that there were insufficient grounds for an appeal to be granted and that any such appeal would be unlikely to be successful.
In a year dominated by court battles demonstrating the tension between technology and rights holders, the High Court’s refusal to grant leave brings to a close this particular saga. Optus will now be unable to revive this service in its original form, and will need to rely on a change to Australian copyright laws if it wishes to do so.
In its decision,  the Full Court of the Federal Court noted that it was simply applying the law and wording of the Copyright Act as it stands, and that if public policy desired a different outcome, then the legislation would need to change to give effect to that outcome.
Rather timely, the Government has recently appointed the Australian Law Reform Commission (ALRC) to enquire into, and report on, current and further desirable uses of copyright material in the digital economy. This stems from the Government’s objective to ensure that copyright law provides incentives for investment in innovation and content while also allowing appropriate access to that content. The digital economy is seen as an important part of Australia’s economic growth and social wellbeing, and the Government wishes to ensure that new opportunities within the digital economy are encouraged ahead of the National Broadband Network rollout.
The ALRC’s enquiry asks for feedback in relation to a number of current issues that are fundamental to the arguments we are seeing in the Australian Courts, as old copyright laws are applied to new technologies. The legal issues considered by the Full Court relating to the time shifting exceptions in the Copyright Act, and the private online use of material, form part of the ALRC’s enquiry.
The ALRC’s final report is not, however, due to be delivered until 30 November 2013, so these issues are unlikely to be settled, and any necessary legal reforms introduced, for some time.
In the meantime the Australian Courts are bound to apply the law as it currently stands, so providers of online storage and cloud computing services in Australia will need to show caution when dealing with copyright material on behalf of their customers.
For more information, please contact:
1. National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd  FCAFC 59.
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