Time Shifting through TV Now – Fair Use or Infringement

Optus has released a product called TV Now, which allows consumers to record Free to Air Television program and play them on mobile phones or computers. The technology allows consumers to play a program on mobile phones or other devices some times with a delay of just two minutes.   Considering the obvious implication of the product on live broadcasting licenses, Australian Football League (AFL) and National Rugby League (NRL) issued legal warnings to Optus claiming violation of copyrights.

In response, Optus approached the Federal Court  for a declaratory order of non-infringement. AFL and NRL countered the declaratory suit arguing that Optus is liable for copyright infringement.  Considering the high value of rights granted on the internet, TV Now can undermine the license rights and licensing fee for broadcasting on internet and mobile phones. Telstra has already informed AFL that it will  re-consider its 150 million dollar broadcasting deal with AFL if Optus’ case is upheld.

Optus’ argument is that it is providing a product for consumers to enable them to time shift the content on television. The act of recording television programs to be viewed at a later time is referred to as time shifting. Time shifting  is considered as fair use and a person would not be liable for copyright infringement. The betamax case in USA, which dealt with video cassette recorders laid down the principle way back in 1979. The technology has evolved quite a lot since the Betamax case and time shifting  is still considered to be fair use.  Optus’ claim is that TV Now enables time shifting, which is fair use.

In a recent decision, a product similar to that of TV Now was held to be non-infringing by a Singapore Court. (RecordTV Pte Ltd v. MediaCorp TV Singapore Pte Ltd [2011] 1 SLR 830 (CA.).  Many scholars believe that Optus’ TV Now falls within the scope of fair use and the decision would be similar to the Singapore court. As media penetration increases, the opportunities of copyright owners for licensing revenues through different means is increasing. Simultaneously, the ambiguity of what amounts to fair use and what does not is also increasing.

Would simultaneous recording and re-playing through a different means amount to fair use? Do copyright principles transcend boundaries of a specific means of exploitation. For example, If a movie is broadcasted on the internet, does a consumer have the right to record it and watch the same on television? As it stands now, copyright laws do not give differential treatment based on means of distribution or broadcasting. Should the law give differential treatment to the benefit of content owners and detriment of consumers?

Your thoughts are welcome…

Image from optus

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