One of the eternal goals of lawmakers when crafting legislation relating to media is to avoid being “technology-specific”, recognising that in communications, technology can change far more rapidly than the law.
Today’s Federal Court decision in relation to Optus’ TV Now case reflects exactly this problem.
Australia’s Copyright Act, notoriously, was ground in not merely a pre-digital era of media technology but in the 1960s and earlier, when people were required to play the role of passive, inert consumers when it came to the media, with limited choice about what they watched and no choice about how they watched.
Needless to say, this was just how big media companies liked it.
The VCR and the portable tape recorder changed that. Suddenly we could timeshift and reformat our consumption of TV and music, even films, to suit our lives better. Media companies didn’t like it, but unlike the music industry later on, they declined to sue their own customers for using their products in a more convenient way.
Emblematic of the entire approach to copyright of big media companies, Australians weren’t legally able to use a VCR until 2006, when the Copyright Act was amended to allow for a greater range of personal use.
Of course, by that point VCRs were becoming antiques, replaced by DVD players and PVRs.
Today the Federal Court ruled in favour of an appeal against an earlier decision that if a consumer decides to make a recording remotely, on a service provided by a company (Optus’ TV Now), that fell under the personal use criteria of the Copyright Act. Instead, the court ruled that the consumer didn’t make a recording when they used the service to create one, Optus did.
In effect the decision says VCRs good, cloud-based services bad, when it comes to personal use. It’s an analog decision for a digital industry.