Today the Full Court of the Federal Court ruled that the TV Now service provided by Optus, which enabled consumers to record free-to-air TV to the cloud for playback on their personal devices, is an infringement of copyright.

The Federal Court considered Optus to be the “maker” of the recording of free-to-air content, despite consumers selecting content to record.

The Australian Digital Alliance is concerned that the Federal Court’s decision could impact on future innovation in cloud-based services in Australia.

“The Federal Court’s decision creates serious uncertainty for creators and providers of cloud-based services, who could be held liable for the infringements of their subscribers,” says Derek Whitehead OAM, Chairman of the Australian Digital Alliance.

“The case clearly articulates the need for a flexible, open ended exception in Australia to facilitate innovation in the digital environment. An open-ended exception may have provided the full Federal Court with greater flexibility in considering whether this new technology was lawful within the intentions of copyright legislation.”

The ADA have responded to the Attorney-General’s Department draft Terms of Reference for the Australian Law Reform Commission’s upcoming copyright inquiry, seeking confirmation that consideration of flexible, open ended exceptions are within the inquiry’s terms of reference.

“It’s clear from the Federal Court’s decision that current purpose-based copyright exceptions protect legacy models, legacy technology. This is disadvantageous for consumers, and for the growth of the digital economy in Australia. We need flexible exceptions that support future innovation.”

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For interviews, contact Derek Whitehead: ph (03) 9214-8333 mobile 0412 996 025

For other inquiries, contact Ellen Broad: ph (02) 6262 1666 mobile 0434 278 910