Conroy flags law changes from Optus win

Communications Minister Stephen Conroy has flagged potential legislative changes to protect football-broadcast rights following the Optus TV Now ruling.

The ruling by Justice Steven Rares in the Federal Court earlier this week stated that Optus' TV Now app does not infringe on the copyright of the sporting codes when it records and replays their TV broadcast. This decision has sparked concerns from a number of sporting agencies worried that the ruling devalues their broadcast contracts. The Australian Football League (AFL) is likely to appeal the ruling in order to salvage its $153 million five-year contract for mobile-broadcasting rights with Telstra, but the organisation has estimated that it could take up to two years to resolve.

Speaking on the Today Show yesterday, Communications Minister Stephen Conroy — an avid Collingwood football club supporter — said that the government would wait for the appeals process to resolve, but indicated that the government may seek to change the legislation to protect the broadcasts of the sporting codes.

"It is a very far-reaching decision that could significantly change the way sporting rights are allocated, and whether it is possible to protect content online," he said. "If we want to sustain the competitions — the NRL, the AFL and all of the other sporting competitions, not just here but around the world — then you have got to be able to, if you pay a large amount of money for those rights, you have got to be able to protect it."

Conroy said that the government had anticipated such issues by commissioning the Convergence Review, which aims to address evolving technology, such as Optus' TV Now app and IPTV, and its impact on free-to-air broadcasting.

Conroy hinted that the government may need to take steps to ensure that rights are upheld.

"We will be wanting to make sure we get the right balance between consumers and the sporting-rights bodies and the TV stations; no one will pay for these rights if they can't find a way to make money off them."

The Convergence Review handed down its interim report late last year, calling for the dissolution of content licences for traditional outlets, instead to be replaced by "content-service enterprises" that are technology neutral and are overseen by a new regulator.

The final report of the Convergence Review is due to reach the government next month. The government is also currently reviewing the 2006 amendments to the Copyright Act 1968 that includes the provision allowing individuals to record TV broadcasts to watch "at a time more convenient".

Ian McDonald, special counsel for copyright with Simpsons Solicitors, told ZDNet Australia that because Optus handles all of the recording, and stores the recordings in the cloud, it will raise interesting questions when this section of the Act is reviewed.

"Nobody really had the cloud in view at that point. Certainly not the legislators or copyright industry in general," he said. "The cloud raises a whole series of quite different policy questions, which is: we are no longer looking at the activities of an individual. We're looking a business model, and an organisation or commercial entity [making the recording].

"Would we apply the same reasoning or see the same need for an exception as the [time-shifting provisions] if we're talking about a centralised, organised commercial entity, which is using this as part of its business model to sell a service?"

A short directions hearing for the case was stood over until Thursday, 9 February, because the parties could not agree on the outstanding matters from the trial. Justice Rares said that he would "endeavour to convene a full court" for the appeal as soon as possible, given the impending start to the season of football for both the AFL and the NRL.

In the meantime, there's speculation that the Federal Court ruling may end up devaluing the broadcast contracts, not only with Telstra, but also free-to-air broadcasts, and this in turn may impact the clubs and the players themselves. Marita Shelly, a law PHD candidate at RMIT University wrote on The Conversation that the AFL may seek to renegotiate player agreements.

"The big losers will be the football clubs and the players. Potentially, the AFL will attempt to re-negotiate with the AFL Players Association in regards to the collective bargaining agreement. Clubs could also be placed in financial risk if their funding was to be reduced," she said.