find the latest legal job
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Full time · Join a leading Adelaide commercial law firm
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Sydney NSW
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Melbourne VIC
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
Legal Inhouse / Lawyer / Company Secretary
Category: Other | Location: Brisbane QLD 4000
· Fantastic Company · Potential to be Part Time / Flexible Work Pattern
View details
Infrastructure Lawyer/SA
Category: Construction Law | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Global elite law firm · Dedicated Infrastructure team
View details
Optus decision fuels copyright debate

Optus decision fuels copyright debate

Copyright law in Australia is faced with significant challenges grappling with “tectonic shifts” in cloud technology, according to legal experts.

The claim comes after the High Court refused to hear Optus' appeal against an earlier Federal Court decision that said its rebroadcasting of live sports through its TV Now service was illegal.

On 7 September, the High Court agreed with the Federal Court’s ruling in April that Optus had breached copyright laws by broadcasting “near live” sports games.

The decision represented a win for the AFL, NRL and Telstra against the original Federal Court ruling that allowed Optus customers to use the TV Now service to record matches and view them on their PCs, telephones and other devices.

Both the AFL and NRL have exclusive internet broadcast rights with Telstra.

Optus argued TV Now conformed to section 111 of the Copyright Act, which allows people to record programs for personal use and won the initial Federal Court case in February.

Critics of last week’s High Court ruling are now calling for the modernisation of Australia's copyright laws to keep pace with shifting technology.

“It’s inarguable that we’re going through a tectonic shift in the way cloud services operate … the way they’re becoming ubiquitous,” said Baker & McKenzie partner Andrew Stewart (pictured), who acted for Optus.

“If copyright law is going to continue to fulfil its proper function in striking a balance between owners and users, this is one thing it really needs to grapple with.

“Those considering these cases have to take into account these fundamental changes.”

The head of Truman Hoyle’s technology practice, Hamish Fraser, described the decision as “an unfortunate outcome”.

“What is interesting is that we’re left with an unfortunate outcome … in that the all the recent attempts to make copyright law technology neutral have failed.”

In April, the Government released its 2012 Convergence Review, which recommended a technology neutral approach to policy and law that will incorporate new services, platforms and technologies.

The Australian Law Reform Commission (ALRC) is currently reviewing copyright exceptions, including those that apply to cloud computing, but the release of the final ALRC report on copyright is not due until November next year.

Despite the High Court decision, Optus and technology experts could pursue the matter through the ALRC review, which they believe may eventually lead to reform of existing copyright law to cater for cloud technology. 

King & Wood Mallesons (KWM) partner Maurice Gonsalves, who acted for the AFL and Telstra, said he was pleased with the High Court outcome, which he said “confirms the ability of a copyright owner to control commercial exploitation”.

“I really think that the case was not so much about consumer rights; it was about whether a commercial organisation like Optus should be permitted to offer a service, which essentially involves making a recording of copyrighted material, without the permission of the copyright owner,” he added.

In the High Court, KWM instructed barristers David Catterns QC and junior counsel Patrick Flynn, while Tony O’Reilly from Kennedys acted for the NRL, instructing barristers Noel Hutley SC and junior counsel Neil Murray. The barristers instructed by Baker & McKenzie for Optus were Richard Cobden SC, John Hennessy SC and junior counsel Nicolas Smith.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Optus decision fuels copyright debate
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Nov 24 2017
Demand lifts in 2017/18 for short-term finance to cover crises
Promoted by NWC Finance. The first five months of the 2017-18 financial year have seen unpreceden...
LCA welcomes religious freedom panel
Nov 24 2017
LCA welcomes religious freedom panel
The Law Council of Australia says the establishment of a panel which will examine the human right to...
Law Society launched a new website, legal politics and lawmaking
Nov 24 2017
Law Society launches project to engage young Aussies
The Law Society of NSW has launched a new website to engage young Australians in legal politics and ...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...