Federal Court decision highlights need for flexible right of fair use in Copyright Act

Electronic Frontiers Australia (EFA) believes today’s judgement by the full bench of the Federal Court in relation to the Optus TV Now service clearly demonstrates the need for a flexible right of fair use to be introduced to the Copyright Act.

The Optus TV Now service is a cloud-based offering available to Optus mobile subscribers that allows free-to-air TV broadcasts to be recorded for viewing later on a mobile or other device.

The judgement, in the case National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59, denies Optus’ use of the ‘domestic and private use’ defence under section 111 of the Copyright Act. This ruling is based on the Court’s interpretation that Optus, rather than the subscriber was the party making the recording.

EFA believes this judgement is a blow for consumers, as it restricts their range of choices in how they watch free-to-air TV. EFA also believes this judgement will have a chilling effect on investment in cloud-based services specifically and internet-based technological innovation more generally.

EFA believes that the Copyright Act should be amended to include a flexible right of fair use, to replace the narrowly-defined and piecemeal exceptions that result in legal uncertainty and ensure that the law constrains innovation and restricts consumer choice. A flexible right of fair use is the basis for copyright law in the United States and has helped to ensure its position at the forefront of technological and service innovation.

Australian consumers have for too long had to wait for the law to catch up with new technologies and services. Australian technology and service innovators have similarly found themselves having to move to more flexible jurisdictions to avoid the legal uncertainty of the current Australian copyright regime.

EFA therefore calls on the Attorney-General to broaden the scope of the Australian Law Reform Commission’s review of the operation of the Copyright Act in the digital environment, to include consideration of a broad, flexible right of fair use.