Sporting codes and the federal government have welcomed the Federal Court’s ruling that Optus cannot legally re-broadcast football matches online with minimal delays.
The Federal Court on Friday upheld an appeal from the AFL, NRL and Telstra against a previous decision which allowed Optus customers to use the TV Now service to view matches with a delay of as little as two minutes.
“The government welcomes this decision,” Attorney-General Nicola Roxon told reporters in Adelaide.
“It’s good news for sporting organisations and it’s good news for the sporting public.”
Federal Court judges Paul Finn, Arthur Emmett and Annabelle Bennett ruled that as the creator of the recordings, Optus was contravening copyright laws.
Their edict dismissed the earlier ruling that customers were responsible for the recordings, saying TV Now recordings were “not made by the subscriber alone”.
“It was made either by Optus alone or by Optus and the subscriber,” they said in the judgment.
The decision is timely for the Australian Rugby League Commission (ARLC) as it negotiates a new broadcast deal with TV networks.
It will clearly have a positive impact on the price it receives for the broadcast rights, but ARLC officials have not been able to put a dollar figure on the benefit.
ARLC chief executive David Gallop says the court’s decision has affirmed the league’s position.
“We have always believed there was a clear principle in play here: that the sports are entitled to control who shows their events and who profits from those events, Mr Gallop said.
“Companies should not be able to profit from our content without investing in the sport itself.
“It is important that we all share in the opportunities that new technology provides but this can’t be at the expense of our basic commercial rights and this is an area that government needs to continue to address.”
AFL chief executive Andrew Demetriou said it was a commonsense decision which vindicated the strong stance taken by the leagues and Telstra.
“It is a relief for not just AFL but for all sporting codes who rely heavily on these rights and the revenue from these rights,” Mr Demetriou told reporters.
“Today’s decision is a win for all sports in this country.
“I thought Optus’s behaviour was unethical and inappropriate. It will be a long time before we speak with Optus.”
The ruling has also strengthened Telstra’s role as the dominant broadcaster of online sports.
“This judgment is a great result for everyone who cares about the financial health of Australian sport,” a Telstra spokesman said.
V8 Supercars – which also has an internet and mobile rights partnership with Telstra – and Cricket Australia also welcomed the decision.
Optus is now weighing up its options and could take an appeal to the High Court.
“We have to look at all our options, which will include an appeal,” Optus spokeswoman Clare Gill said.
But the AFL’s Mr Demetriou has warned Optus against challenging the decision.
“They have to think very carefully about that. The three Federal Court judges were unanimous. Any appeal would be costly and take time,” he said.
The case could eventually result in changes to copyright legislation.
“The government has commenced a referral to the Law Reform Commission dealing with copyright more broadly and particularly changes that might be needed in the future to the Copyright Act because of our digital world and the changing way that people want to watch material on iPhones and different sorts of applications, not just on their TVs,” Ms Roxon said.
Law firm Finlaysons partner John MacPhail says the court’s decision makes the commercial exploitation of technological innovation a little bit harder.
“With the advent of cloud computing, this decision raises the serious prospect that providers of cloud computing services could now be held liable for the content which is uploaded onto their systems.”
