Optus to seek TV Now High Court appeal

Optus intends to ask the High Court to hear an appeal of the judgment that decided its TV-recording app TV Now breaches the copyright of Australia's biggest sporting codes.
Written by Josh Taylor, Contributor

Optus intends to ask the High Court to hear an appeal of the judgment that decided its TV-recording app TV Now breaches the copyright of Australia's biggest sporting codes.

Optus TV Now allowed customers to use Optus' storage cloud to schedule, record and play back 15 channels of free-to-air digital TV from a 3G mobile or PC. Last month, the full bench of the Federal Court upheld complaints made by the National Rugby League (NRL), the Australian Football League (AFL) and Telstra that the recordings of football broadcasts are not covered by time-shifting provisions in the Copyright Act, because it is Optus, or Optus and the customer jointly, making those recordings.

Optus has suspended the service as a result.

This afternoon, Optus CEO Paul O'Sullivan said that the telco would seek leave to appeal the matter before the High Court of Australia, and he told journalists today that he is confident that the High Court would want to hear the case.

"We think it has ramifications for all cloud storage. The issues here are about giving Australians confidence that you can take the best advantage of cloud storage in all forms, not just TV Now. It is such a fundamental issue, [...] we're dealing with new technology, and it's an area where the law is having to evolve.

"We believe it is an issue of national significance and importance to the courts, and therefore we are highly confident it should be taken up for appeal," he said.

O'Sullivan declined to reveal how much the case has cost to date in legal fees, but said that it is important for Optus to take up the issue. O'Sullivan confirmed that Optus has been in talks with the Federal Government on the TV Now issue, and has also approached free-to-air broadcasters. This doesn't mean, however, that Optus would be willing to pay to license broadcasts from the TV stations.

"We're one of the major advertisers in the nation [and] that advertising funds free-to-air broadcasts. From our point of view, our technology is merely allowing Australians to record those free-to-air broadcasts to watch them at a more convenient time on the technology of their choice. It's really just a modern version of the video recorder," he said.

"This content has already been paid for, and, in fact, we're enhancing the value of it because we're making it reach more eyeballs and more people. We certainly don't think Australians should pay for it twice. It's been paid for through the advertising."

O'Sullivan indicated that if Optus were to be charged for the content, this charge would likely have to be passed onto customers. He said that Optus is not selling content, but rather just the ability to store and record content, and the price that Optus charges is to recoup costs for the storage of the recordings.

He said that free-to-air television stands to gain from the app, because Optus could give the channels an idea of what their customers are watching and when. He also took aim at the AFL and the NRL, saying that sport rarely makes it into the top four of the shows that customers are recording.

Truman Hoyle Lawyers partner Hamish Fraser told ZDNet Australia last month that he believes the High Court will be interested to hear the case, as it has not yet tested the provisions in the Copyright Act that allow individuals to record broadcasts to watch at a time more convenient.

Editorial standards