Govt mulls closing Optus TV loophole

In the wake of Optus' victory over the sporting codes in its TV Now case, sports groups are lobbying the prime minister to make quick changes to the Copyright Act, with the government "urgently" considering its options.
Written by Josh Taylor, Contributor

In the wake of Optus' victory over the sporting codes in its TV Now case, sports groups are lobbying the prime minister to make quick changes to the Copyright Act, with the government "urgently" considering its options.

Last week, the Federal Court ruled that Optus' TV Now app, which allows users to record free-to-air TV to watch later on their mobile, is not in breach of the Copyright Act 1968, because it falls within section 111 of the Act. This section was added in 2006 to allow users to record broadcasts to watch at a time more convenient for them.

The ruling threatens mobile-broadcasting deals for the Australian Football League (AFL) and the National Rugby League (NRL) worth over $100 million each, and the codes have indicated that they plan to appeal the ruling.

Executives with the NRL, the AFL, Cricket Australia and Tennis Australia met yesterday with Prime Minister Julia Gillard, Communications Minister Stephen Conroy, Sports Minister Mark Arbib and Attorney-General Nicola Roxon, urging them to prevent products like Optus' TV Now by tightening the relevant provision in the Act.

Executive director of the Coalition of Major Professional and Participation Sports Malcolm Speed told ABC's AM program this morning that the sports have already begun working on proposed amendments with the government.

"The final words of the amendment haven't been clarified yet, but the intent isn't, certainly not, to stop people taking content off their TVs. There is no problem with that. We have all been doing that for many years," he said.

"Hopefully, there will be a Bill to be drafted, and hopefully we'll have bipartisan support for that to move through parliament quickly."

In a press conference today, Gillard confirmed that she has met personally with the sporting executives, and is considering a response.

"We have said to them ... that we will urgently consider options here. I think we're all concerned about what this could mean for our great sporting codes, and it was an unexpected development," she said.

Conroy told the conference that the government is seeking legal advice, and would also be speaking to Optus about the case to determine what adverse consequences may arise if the Act is changed.

"We're in the process of getting all the information, all the legal advice. We'll be going through a process to ensure that if any change is to be made, we would consider any adverse consequences, but, at this stage, we're just getting the legal advice fully explained to us, and we're happy to consider if a solution is available."

He said that JB Hi-Fi already sells TV receivers that will let people broadcast free-to-air TV onto their iPads, and that this is the kind of technology change under consideration by the Convergence Review.

Shadow Communications Minister Malcolm Turnbull confirmed he met with AFL CEO Andrew Demetriou yesterday and said that he believed the ruling had "effectively destroyed the economic value of the so-called online live broadcasting rights that Telstra had paid so much for".

He said that while there was a "powerful argument" that the parliament should examine the legislation, he said any amendments would need to be narrow enough to not impact other cloud offerings such as iTunes Match.

"The argument in favour of making no changes is to say why should a viewer be prevented from doing in the cloud ... what they're entitled to do on their server or on their recorder at home. And that's a powerful argument," he said.

But being able to play matches near-live dramatically changes the economics of the industry, he said, and were he in government he would "get on with it" and sort the issue out quickly in view of the upcoming 2012 Olympics.

The Greens, however, are less keen to see any changes to the Act, with communications spokesperson Scott Ludlam saying that the Federal Court ruling was "common sense".

"It is interesting to watch the commercial intermediaries trying to protect their 'exclusive' rights to profit from sports broadcasting, when all that has happened is that technological innovation has swamped an obsolete business model," he said in a statement.

"The government should be on notice that the Greens will not automatically support a hasty whack at the Copyright Act which attempts to turn back the tide."

At the same time as the government is considering swift changes to the Act, the Australian Law Reform Commission (ALRC) is also undertaking a wider review of the Act, and today Roxon appointed University of Technology Sydney (UTS) Dean of Law Professor Jill McKeough as the commissioner in charge of the inquiry.

Optus welcomed the announcement of the review, and urged the commission to "consider input from all sectors of the digital economy and the Australian public to ensure a balanced evaluation".

Updated at 4:56pm, 8 February 2012: added Turnbull and Ludlam comment.

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