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Optus Judge Weary About Making Copyright Policy

The Australian government, pressured by sports leagues, agreed to review sections of the nation’s copyright law that allow events to be rebroadcast on mobile devices.

The review will cover a “broad range of exceptions” in the Copyright Act that include allowing a user to record an event to watch later, known as time shifting, Attorney-General Nicola Roxon said in a statement today.

The Australian Football League, the most popular spectator sport in the country, and the National Rugby League are attempting to overturn a Federal Court ruling that allowed telecommunications provider SingTel Optus Ltd. to rebroadcast games over mobile devices shortly after they aired live. The AFL broadcast rights, sold to Seven West Media Ltd., Foxtel and and Telstra Corp., are valued at more than A$1 billion ($1 billion).

“It’s right to have a review,” said Maurice Gonsalves, a partner specializing in intellectual property at law firm King & Wood Mallesons in Sydney. “The present system isn’t working very well.”

Gonsalves represents Melbourne-based Telstra in the current dispute with Optus.

Jill McKeough, Dean of Law at the University of Technology Sydney, will head the Australian Law Reform Commission undertaking the review, Roxon said.

“Technology is constantly evolving and testing the boundaries of copyright law,” Roxon said in the statement. “It’s important to ensure our copyright laws are keeping pace with change and able to respond to future challenges.”

Two-Minute Delay

Optus’s TV Now service allows users of Apple Inc. iPads and iPhones to view events with as little as a two-minute delay from when they air live. The AFL, NRL and Telstra say the service infringes copyrights because Optus makes the recordings, stores them on its servers and passes them on to customers.

Optus, the Australian unit of Singapore Telecommunications Ltd., is covered by an exemption in the law allowing people to record copyrighted material for their own personal use, Federal Court Judge Steven Rares ruled Feb. 1.

The customers made the recordings “for their private and domestic use” at a more convenient time, even if that meant viewings were “near live” within minutes of the start of the broadcast,’’ Rares wrote in his ruling.

Rares’s decision, the first of its kind, prompted the AFL, NRL, other sports organizations and broadcasters to press the federal government to change copyright laws and prohibit the practice.

Fair Use Doctrine

“This development is clearly an example of the technology overtaking the law,” David Gallop, the National Rugby League’s chief executive officer, said at a Feb. 10 news conference.

“It couldn’t have come at a worse time to have this sort of uncertainty,” he said, referring to negotiations the league is holding with broadcasters on a new deal that would run from 2013 to 2017.

In the U.S., the fair use doctrine allows for the general, non-commercial use of excerpts of copyrighted material, whereas in Australia, copyrighted material use is allowed only under specific exceptions, such as personal use, Gonsalves said.

Both the AFL and NRL deals are at the risk of dilution, as are those for this year’s London Olympic Games, if the rebroadcasts are allowed and other operators adopt similar technologies.

Leagues Appeal Ruling

The sports leagues sought to overturn Rares’s ruling and an appeal panel is considering the case. There is no indication when it will rule.

TV Now, which Optus started in July last year, allows customers in Australia’s mainland state capitals of Sydney, Melbourne, Brisbane, Adelaide and Perth to record free-to-air television programs, including AFL and NRL games, and play them back on computers, iPads and most 3G mobile devices.

Optus picks up free-to-air TV digital transmissions of 15 signals, including those from Channel 7, Channel 9 and Channel 10. Those broadcasts are converted into four types of video files, such as QuickTime for playback on Apple and other devices, which are stored on the company’s servers.

The government inquiry in copyright exceptions will accept submissions and comments from the public until April 27, Roxon said.

The case is National Rugby League Investments Ltd. v. SingTel Optus Ltd. NSD201/2012 Federal Court of Australia, Full Court (Sydney).

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