Today BRR Media speaks with Andrew Wiseman; he’s a Partner in the Intellectual Property Group at Allens Arthur Robinson in Sydney.  Welcome back to BRR Media Andrew.

Thank you David.

Andrew of course Optus’ right to stream AFL games on the internet was overturned by the Full Federal Court today, giving Telstra, the AFL and the NRL a significant victory, whilst putting Optus’ TV Now service in limbo.  Was this the expected result?

Yeah David today’s decision was a significant decision by the Full Court of the Federal Court, on appeal from the single decision of Justice Rares at first instance, 3 experienced Federal Court judges, Justices Finn, Emmett and Bennett, gave a single unanimous decision.  Was the result expected?  I guess it depends who you talk to.  I suspect the reality is that it was not unexpected and for me and for other that I’ve been talking with it was more likely than not.

Well just looking at the result itself, what was the key factor in Telstra’s victory here?

The key factor really was what the Full Court regarded as the proper meaning of the words “to make”.  The lower court had considered that because the user clicked the record button, the user made the copies, but the Full Court thought this was too simplistic.  And when you’re looking at the words “to make” you have to make something; you have to have some physical embodiment of what’s actually been copied in an article or a thing, and this is central to copyright law they said.  And in analysing who does what and when and where and how, in relation to the TV Now service, the Full Court considered firstly that Optus had designed the TV Now service, it looked at the joint contractual nature of the relationship between Optus and its subscribers, and it looked at the fact that no copy was ever stored on the user’s device, it all happened in the Optus cloud.  And one of the things about the earlier decision, the lower court’s decision was that there was a leap from the living room to the cloud, and if there was going to be an appeal point then most of us thought that that was it, and this is exactly what the Full Court focussed on.  Given this, the Full Court found it hard to see that the user alone was responsible for making the copies, even if the user did click the record button.  When looking at the role Optus played in making copies of the programs the Court found that Optus was so in the middle of it all that it just could not be disregarded when trying to identify who makes the copies.  And it’s probably best summed up by the Full Court’s words “without the user’s involvement nothing would be created without Optus’ involvement nothing would be copied, each contributed to a commonly desired outcome”.  The key factor for the time shift defence, not being available to Optus, was that the defence was never intended to cover commercial copying on behalf of the individuals.  So those were the two key factors as to why Optus was unsuccessful today.

And Andrew there’s been reports of legislation already being drafted to specifically protect the NRL in case the Court sided with Optus.  What do you make of that?

It’s not a surprising development, but I think a very powerful message in today’s judgement touched on this very issue.  In reflecting on whether or not the copyright defences should extend further, the judges noted that given the conflicting interest and values at stake any decision to modify the time shift or any other defence must be a legislative choice not a judicial one.  And given the high commercial stakes where you’ve got markets worth hundreds of millions of dollars this is not surprising.  So with a legislative, consultative process, the various competing or conflicting interests and values and consequences can be considered and weighed up.

And just finally I guess in the meantime, what does this now mean for services like Optus’ TV Now?

Oh look it means that unless or until the High Court reverses the decision, or legislation provides a defence for services like TV Now, the content or rights owners can revert to the previous status quo and command significant fees for exclusive arrangements in the online broadcasting space.

Do you think it will be appealed though to the High Court?

Oh I think it’s inevitable that it will be appealed.  There is just so much at stake and I would expect that to be expedited.  Although I guess from Optus’ perspective it’s a point of principle at this stage and the way the decision is at the moment it’s now in favour of the content owners.  So for now I would expect that the service will be in limbo as you initially suggested.

Indeed we’ll certainly keep a close eye on things as they pan out, and thanks again for your update today Andrew.

It’s a pleasure David, thank you.

That was Andrew Wiseman, Partner in the Intellectual Property Group at Allens Arthur Robinson in Sydney.  Listeners if you have any further questions for Andrew about this interview please send a message using the panel on your screen; or you could otherwise email through to law@brrmedia.com and we’ll forward your query.