Singtel Optus Ltd. (CWO)’s dispute with Australian sports leagues over the streaming of broadcasts to computers and phones has a judge concerned the courts may be pushed into making policy decisions, which should be done by the government.
“You’re asking us to make a policy decision,” Justice Arthur Emmett, a member of a three-judge panel hearing the sports leagues’ appeal of a ruling that cleared Optus to show over-the-air broadcasts on computers and mobile devices, said today. “Should we not be reticent to do that?”
The Australian Football League, the most popular spectator sport in the country, and the National Rugby League seek to overturn the lower court ruling to protect broadcasting rights valued at more than $1 billion. The decision, if upheld, would also let mobile phone operators stream over-the-air broadcasts of this year’s Olympic Games to customers, with only a slight delay, and without having to pay for broadcast rights.
The panel reserved its ruling in the case at the hearing in Sydney, with Emmett saying the judges “hope to have a decision reasonably expeditiously.”
The main point of dispute is who creates the electronic files that are streamed to the customer for viewing.
The AFL, NRL and Telstra Corp., Australia’s biggest phone company, say Optus’s service infringes their copyrights because it makes the recordings, stores them on its servers, and passes them on to customers.
The AFL signed a five-year, A$1.25 billion ($1.3 billion) agreement last year with Seven West Media Ltd. (SWM)’s Seven Network, Foxtel, Australia’s biggest pay television operator, and Telstra for exclusive broadcast rights to its games. The NRL is in talks with broadcasters on a new deal that would run from 2013 to 2017.
Optus is covered by an exemption in the copyright law that allows people to make recordings of copyrighted material for their own personal use, the company said.
“The customer operates Optus’s equipment,” Richard Cobden, Optus’s lawyer, told the panel today. “The last human intervention is the maker.”
Federal Court Judge Steven Rares last month agreed with Optus, ruling the user of the phone, computer or tablet made the recording, much as people used to do with video cassette recorders or with digital video recorders.
Neil Murray, the NRL’s lawyer, called Optus’s argument “self-serving.”
A customer who orders a pizza online didn’t make the pie, Murray said.
“There’s no doubt who the maker is,” he said. “It’s Pizza Hut.”
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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