In a landmark decision the Federal Court in Sydney ruled that Optus has not breached Telstra’s exclusive rights to air AFL and NRL matches on mobile devices by giving its customers access to the games.
It found that Optus did not breach copyright by showing sports online with its new TV Now service, as users recording free-to-air television from their smart-phone or computer did not breach copyright because individuals were responsible for requesting each recording and that Optus kept separate recordings for each customer. Justice Steven Rares found Optus did not breach any rights related to Telstra’s deal with the NRL and AFL to broadcast live matches on the internet because of “time-shifting provisions” in the Copyright Act that allowed people to record shows and watch them later.
However the judge did emphasise that some other issues raised in the case may still require to be resolved at another time.
“These include whether Optus infringes copyright because the technology used to make a recording in the format suitable for certain Apple devices creates and stores six temporary files of 10 seconds duration every minute and then deletes the first 10-second file as the latest one is added one minute later,” the judge said.
The AFL expressed its disappointment at the decision as they, the NRL and Telstra were ordered to pay Optus’ court costs, however any appeal by the combined football codes against the judgment is not likely for a while yet. Andrew Demetriou the AFL’s CEO, said the league would exploit all avenues of appeal as he promised the AFL would protect its content and also do everything to protect its $153 million, five-year deal with Telstra.
Demetriou also added that he was confident Telstra would not seek to break its contract with the AFL on the fact that the content it contracted for was no longer exclusive. Argument about whether Optus would be protected to continue offering its service to consumers – Learned legal minds say Justice Rares’ decision was “incorrect” and the AFL, NRL and Telstra have a strong case for appeal. If the judgment stands, it will be a financial disaster for all the football codes in negotiating their future media rights agreements by effectively eliminating the exclusive provision of internet rights.
