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Monday, 06 February 2012 16:10

Possible responses to Optus TV Now case threaten our rights


Stephen Conroy, the Minister for Broadband, Communications and the Digital Economy, is reportedly foreshadowing changes in the legislation to stop Optus offering its TV Now service, following the company's court win last week. Any changes are likely to whittle away at the exemption we currently enjoy to time-shift programs.

As previously reported, Optus won the copyright case brought against it by Telstra, the AFL and the NRL concerning the TV Now service, which allows subscribers to record free-to-air broadcasts and then play them on a computer or mobile device.

This, in my opinion, was a completely correct decision. The Copyright Amendment Act 2006 gave us the right to time-shift TV programs, and for some years our Commonwealth and State governments have worked on the basis that legislation should be technologically neutral. So copyright law doesn't provide an exemption for the recording and playback of programs on a particular type of media, for the method used to transmit the recording from the recorder to the player, or where the recorder or player are located. It just provides an exemption for recording for personal or household use.

According to a report published in The Age last Friday, Stephen Conroy, the Minister for Broadband, Communications and the Digital Economy, is considering changes in the legislation in order to block Optus's TV Now or similar services. The danger for ordinary Australians is that any such changes could easily restrict the exemption provided under the Copyright Act that allows us to time-shift or time-slip broadcast content. This practice has become an entrenched part of everyday life for many of us.

Just because Optus or anyone else offers a PVR in the cloud I don't see why that should change anything, especially as a separate recording is made for every user, recordings are only made when the user 'presses the button', and the recordings are deleted after a fairly short time.

I know this is remarkably similar to Optus's position, but before anyone accuses me of being an Optus shill, I assure you that I arrived at it independently and that my only connection with the company is as a cable broadband and fixed-line telephony customer. 

Why did anyone expect a different decision? Please read on.


Frankly, I'm amazed that anyone (including the plaintiffs) expected the court to deliver a verdict other than the one it handed down, and I think some parts of the mainstream media are playing it up in a way that serves their own interests. The case was brought in part by the AFL and NRL, and Australians love their footy. The focus on a specific type of content rather than the principles has allowed the leagues and some commentators to suggest that the decision puts the sports at risk.

As Greg Baum pointed out in The Saturday Age last weekend, if the leagues are relying on revenue from streaming video to mobile devices, then they are living beyond their means. Don't be fooled by the argument that suggests that if the court decision is upheld and the law isn't changed, live sport will move almost exclusively to pay TV. That's already happening - look at English Premier League football in the UK, or A-League football in Australia.

Remember that the local leagues are already being paid handsomely for the content that TV Now is taking to additional screens. We're talking about free-to-air programs that are financed through taxation (in the case of the ABC and to some extent SBS) or by the revenue from the advertising that's embedded in the transmissions, and the TV stations are already paying the content owners/producers - whether they are production houses, studios or sporting bodies - for the broadcast rights. The AFL, for example, receives $1.3 billion under its current multi-year TV rights deal.

If the situation was reversed and the $1.3 billion was put at risk by the $153 million, you could see why they were worried. But the idea that the leagues should get more money just because matches are being recorded is blatant double-dipping. If anything, the extra screens and eyeballs makes free-to-air TV more valuable to advertisers, who presumably could therefore be persuaded to cough up more dollars to the TV stations, who would then be able to pay more for the content.

And if the issue for advertisers is that we're fast-forwarding over the ads, we've been doing that for about 30 years. (I don't know what happened in your house, but we bought our first VCR in 1984 in order to watch the Los Angeles Olympics.) But I think they've caught on, judging by the increasing display of during-play advertising and a massive increase in advertising at major sports grounds, including video technology that allows multiple ads to be shown in one location.

The danger is that any change to the law that would block TV Now is likely to impact the way we currently consume TV. If short-delay ('near-live') playback was prohibited, you'd no longer be able to press Pause on your PVR or iQ when the phone rings, or use products such as Elgato eyeTV to relay live TV from your computer to an iPhone or iPad.

What else could be prohibited? See page 3.


If wireless transmission of recordings was prohibited, you may no longer be allowed to stream recordings made on a tuner-equipped PC to your Wi-Fi equipped TV, to use one of the wireless HDMI products such as the Belkin ScreenCast AV4, or maybe even one of the many wireless AV senders that people use to connect a TV in the bedroom to the pay-TV set-top box in the loungeroom.

If consumption of recordings on a mobile device was prohibited, you'd no longer be able to use your tablet or smartphone to watch programs you'd recorded on your computer. There might even be questions about using a Wi-Fi TV tuner such as the Elgato Tivizen with an iPad.

Optus is charging for is 'rental' of the equipment used to make the recordings you requested (saving you having to purchase your own gear), and then for delivering the recording to you. This isn't a legal nicety, it's the heart of the matter. The Telstra/AFL/NRL position is a bit like saying that Australia Post should have to pay a fee to the studio for the right to deliver the DVD movie you purchased online, and that the manufacturer of your PVR should have to pay a fee to the 'rightsholder' every time you record something.

My belief is that we are best served by keeping the technology-neutral approach, but there are clearly forces working to reduce our existing rights. The underlying problem is that Telstra has paid for rights to certain sports content that aren't actually separable from the broadcast rights - but that's their problem, not ours. Yet money talks.

I know that things get tricky when we stay into the political arena, but if you are at all concerned about this, I suggest you write to your parliamentary representatives and express your views. I can't remember the exact numbers, but I believe there is a rule of thumb when dealing with politicians along the lines of one personal letter is worth 10 phone calls, 100 emails or form letters, or 1000 signatures on a petition.

You can bet your life that big business is lobbying hard.



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Stephen Withers

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Stephen Withers is one of Australia¹s most experienced IT journalists, having begun his career in the days of 8-bit 'microcomputers'. He covers the gamut from gadgets to enterprise systems. In previous lives he has been an academic, a systems programmer, an IT support manager, and an online services manager. Stephen holds an honours degree in Management Sciences and a PhD in Industrial and Business Studies.


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