Optus has compared digital video-recording systems, such as Foxtel's IQ, to its cloud-based TV-recording app, TV Now, in arguing that it falls within the "time-shift" provisions of the Copyright Act.
Optus has brought the case to court against the National Rugby League (NRL), the Australian Football League (AFL) and Telstra, seeking a pre-emptive strike against any possible claims of copyright infringement.
The AFL, the NRL and Telstra argue that the TV Now app, which allows users to record TV from free-to-air TV, and watch back later, either on their phones or PC, is an infringement on their copyright. According to the sporting codes, it jeopardises mobile-broadcasting deals worth hundreds of millions of dollars.
On the first day of the hearing in court, Justice Steven Rares heard evidence from Rod McKemmish, partner at PPB Advisory, explaining how the TV Now app works.
When a user selects to record a program, it is stored in Optus' server for 30 days. For each TV broadcast, Optus makes four copies, so that the content is compatible with iOS, Android, PC or older 3G phones.
The beginning of the trial will focus on the recording of the show, and whether this breaches copyright. Optus counsel Richard Cobden said that it will have to be determined whether the customer makes the recording by selecting it through the app, or whether Optus is responsible — or a combination of both.
If the customer is found to make the recording, and it does infringe on copyright, then it becomes a matter of whether Optus authorises that infringement.
However, much of the case centres on a streaming function only available in the iOS app.
Although there's about a one-minute delay from the time of broadcast to when it can be streamed to an iOS device, the AFL, NRL and Telstra argue that this is "near-to-live" broadcasting. Optus argues that this streaming is no different to time-shift viewing of digitally recorded video, in that it allows customers to view content at a more convenient time. This is allowed under the Copyright Act 1968.
Cobden today compared the case to Cartoon Network v. CVC Holdings 2008 in the United States that ruled that CVC Holdings' digital video recorder had not infringed on copyright with stored recordings on the DVR hard drive.
Similarly, by storing the TV in Optus' cloud-based storage, for private use of that user only, Optus argued that this is covered by section 111 of the Copyright Act. Cobden said that the legislation is left open enough to account for advances in digital-recording technology, including cloud-based technologies.
"Section 111 can plainly be engaged if you paid someone to make a copy for you," he said, comparing Optus' TV Now service to paying someone to come to your house and set the video recorder for you while you are on holidays.
The fact that the recording is not held by the user, and rather by Optus, does not make a difference, he said, because ultimately it is only available for viewing by that individual user.
The definition of "at a time more convenient" is left open to interpretation, too, Cobden said, so that it could mean almost anything except live broadcast, because people wouldn't watch TV at a time that isn't convenient.
"It sounds like a dead parrot," Rares joked.
Rares today also heard from Screenrights, an organisation that oversees the provisions in the Copyright Act to allow educational institutions to copy TV and radio broadcasts. The organisation had sought leave to intervene, arguing that the case could have implications for this part of the Act; however, Rares disagreed, and rejected the application.
The case resumes tomorrow.