When any amendments are proposed to copyright law the lobbying is ferocious.
The stakes for all concerned are very high. For creators it is their livelihood, for publishers their profits and for consumers their entire way of life.
It may once have been thought that the vested interests and deep pockets of big business favoured the publishers — and that the publishers' support of the creators favoured creators over consumers. But in the age of social media, smart phones and the cloud, consumers are no longer passive audiences. The rights of the consumer are becoming limited only by the scope of the technology available to them.
That the balance of power has shifted is evidenced by the powerful lobbying that greeted the proposed copyright enforcement laws earlier this year in the US.
Closer to home, a set of amendments to the Copyright Act made in 2006 have lead to seismic alterations in the landscape for commercial television broadcasting. The amendments created exceptions to copyright infringement for time and format shifting for personal use. They broadened the prior existing home video copying exception to bring the laws up to date with new technology and consumer habits.
It was these amendments that were the focus of a landmark Federal Court judgment handed down last month.
On 1 February 2012 in Optus v the NRL Justice Rares of the Federal Court of Australia held that Optus was entitled to prevent the NRL from shutting down its TV Now service.
The TV Now service enables subscribers to record any television program, including live broadcasts of sports events such as NRL matches, and play them back on their iPhone with only a couple of minutes delay. On Android mobile devices the playback is available once the entire program has been recorded whereas the encoding for the iPhone is done on the fly.
The judgment rendered potentially valueless the internet broadcasting rights for the NRL for which Telstra had paid $153 million. Effectively, any Optus subscriber can watch what Telstra had paid for exclusive access to. Notwithstanding Telstra has agreed to honour this deal and the decision has been appealed.
Optus' case relied on the 2006 amendments. Justice Rares referred to the Explanatory Memorandum and to the parliamentary debates introducing the 2006 amendments and quoted the following Senate Reading Speech:
"… This amendment provides greater flexibility in the conditions that apply to time-shift recording. The development of digital technologies is likely to result in increasing use of personal consumer devices and other means which enable individuals to record television and radio broadcasts on or off domestic premises. The revised wording of section 111 by this amendment enables an individual s to record broadcasts as well as view and listen to the recording outside their homes as well as inside for private and domestic use."
Rares J held that the service provided by Optus enabling subscribers to record programs to Optus' servers via a mobile App and to play that recording back by streaming the recording over Optus' network to their mobile was a form of just such "other means" presaged in the Reading Speech. The amendment was interpreted to include any means — whether by a device or a service or combination of both — that enables personal use notwithstanding that the service was part of a commercial available to members of the public to subscribe to.
The 2006 exception for recording of television broadcasts also requires that the recording be for "use by watching or listening to the material broadcast at a time more convenient than when the broadcast was made". By drawing an analogy with the practice of using the modern digital TV and digital personal video recorders to pause live broadcasts, Rares J held that the one to two minute delay on the iPhone app was acceptably exempt time shifting.
The quantum leap here is that the utility of time shifting — to enable viewers not to miss a second of their favourite show — is being applied for location shifting, enabling the subscriber to watch their favourite program anywhere on their iPhone.
An outstanding issue which the parties agreed would be dealt with separately and upon which Rares J made no decision was whether the QuickTime streaming files used by the iPhone could be an infringement of copyright in the broadcast. To deliver the recording of the programs on the fly with only a one to two minute delay the QuickTime format relies on a process of copying, caching and deleting of 10 second blocks.
At the time of the amendments being debated the Government was strenuously lobbied on behalf of consumers who were concerned that the very serious criminal sanctions for copyright infringement could be brought against innocent law abiding citizens simply for copying their CDs onto their computers and digital music players which were only for personal use. The Copyright Act already allowed home users to make off-air copies of TV programs to their VCRs but this exception was considered out of date since the introduction of digital devices to record programs and reformat analogue content to digital.
Lobbying was to some extent in response to the prosecutions taking place at the time in the USA by the Record Industry Association of America against average people — not organised criminals who were downloading music. Individuals were being sued for hundreds of thousands of dollars in damages under strict penalty damages laws introduced to deter illegal downloading in the USA.
Adding to the apprehension about deterrent actions being brought in Australia by US companies was the fact that one year prior to passing the amendments to the Copyright Act in 2006, Australia had entered into the USA Australia Free Trade Agreement under which a raft of amendments were introduced to strengthen enforcement of copyright and make it easier for USA copyright owners to protect their interests against infringement in Australia. The Free Trade Agreement was passed with little or no amendment to the Copyright and Intellectual Property provisions — effectively adopting the US Digital Millennium Copyright Act recognition provisions.
Fast forward to 2011 and the SOPA and PIPA legislation proposed further powers to restrict access to the internet and severe penalties for infringement.
Opponents criticised its potential to interfere with lawful uses of the Internet and its proposed measures would restrict freedom of speech. The penalties were ridiculed with blogs citing "Sing Michael Jackson, 5 years in jail. Kill Michael Jackson, 4 years in jail. American politics".
Wikipedia and Reddit threatened to shut down their websites in protest. Google gathered a petition of millions of signatures and vocally criticised the legislators' technological ignorance of the Internet. Tim Berners Lee expressed his opposition.
Despite having the broad backing of the film, television and music industries the legislation was scuttled. This US experience is likely to inform lobbyists on all sides of the Optus NRL case when inevitably the Federal Government will be called upon by the loser of the final appeal to change the law. "The Order," as Bob Dylan, perhaps never so ironically sang, "is rapidly fad'n" .
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