Surprise, surprise, the lobbying has started. The news today is full of the fact that a group of sports chiefs met with senior government ministers to seek a “quick and simple” amendment to the Copyright Act to “fix” the decision in the Optus versus NRL case handed down last week. Ah, yes, the knee-jerk reaction. “Just make this little change and everything will be fixed.”

Don’t take that claim at face value. Our copyright law is a wondrous complex beast, and even apparently simple tweaks carry the potential for significant unintended consequences. Let me explain a little.

Justice Rares ruled on broadly two questions, legally speaking. First, when consumers use a cloud-based service such as Optus TV Now, is it Optus, or the consumer, who is making the copies, or doing the streaming? Justice Rares ruled that it is the consumer who is undertaking those acts. On this, I think Rares J is right: it’s entirely consistent with case law overseas, and with our own copyright precedent. It rightly pegs a cloud provider as a facilitator of others’ acts, not as the actor.

That doesn’t let cloud providers entirely off the legal hook — if their customers engage in mass infringement, we have rules against “authorising” infringement. But it’s important to realise that any copyright amendment that overturned this part of the ruling could have disastrous consequences for any and all cloud-based services. Suddenly every cloud operator would need copyright licences for any copyright material on their servers. If they can get them. Hello barriers to entry.

The second part of the ruling related to the time-shifting exception. Here the judge had to decide whether consumers were acting only for “private and domestic purposes”, and to watch the broadcast “at a more convenient time”.  Justice Rares ruled that what was happening on Optus TV Now did fit this exception, even where, on Apple devices, they could watch the recording on a two-minute delay.

Now I can imagine a few ways the sports chiefs might seek to overturn that interpretation. They could go the whole hog and demand that the exception simply not apply to cloud-based services. That would mean consumers could record TV to watch later — but only on their own digital video recorder in their home. Or they could demand a carve-out for live sports (so no recording the football). Or they could demand that “a more convenient time” mean no earlier than the completion of the original broadcast — getting rid of the streaming on two-minute delay and protecting “live” sports but preserving consumers’ ability to record football.

Some of these possibilities are worse for the football-loving public than others. It would be pretty drastic, for example, to deny people any right to use cloud services (and terrible for innovation and our digital economy). It would be harsh indeed to deny the right to record live sport (and ironic, since recording football was one thing Senators were concerned to protect, when they started thinking about this issue  in 2004). Preventing the streaming on a two-minute delay is less severe.

But any change to the time-shifting exception leaves football fans worse off. Most obviously, any change that will satisfy the sports chiefs and protect the AFL’s exclusive deal with Telstra means that customers of any other mobile phone provider lose out (if they’re AFL or NRL fans, that is). We’re meant to change mobile providers for the NRL season? How does that make sense? And, by the way, how does that serve the NRL which surely wants a bigger audience for its games?

More generally, if the government turns around now and changes the law, we all lose. This is because of the message that an amendment will send to anyone who wants to offer innovative services to consumers in the digital environment. In this case, Optus took a risk, invested in a new service for its customers, entirely within the law. It acted on the basis that the government had given consumers certain rights to time shift in 2006. If the government turns around now, in panicked response to the sports chiefs’ lobbying, and retracts rights it gave so recently, what incentive does anyone else have to take a risk in the future? So much for Australia’s exciting new digital economy.

It seems to me that both the government, and the sports chiefs, might do well to take a breath and look around. The government might do well to read some of the online comments from the public, many of whom are displaying little sympathy for the sporting codes and broadcasters who have failed, in so many cases, to provide live access to big sporting events (anyone remember the Rugby World Cup?). Or they could refer the issue to the ALRC, which is already meant to be looking at copyright exceptions this year.

And the sports chiefs might do well to think a little more creatively: to see the internet not as just another revenue stream to be tapped through exclusive licences, but as an opportunity to engage directly with the fans, and to provide a better and more interactive experience of live sport than Telstra or Optus ever will.

Peter Fray

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