Follow last Friday’s post, in the twittersphere @wenhu points out that s 22(6) defines who the maker of a communication is:

(6)  For the purposes of this Act, a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication.

(6A)  To avoid doubt, for the purposes of subsection (6), a person is not responsible for determining the content of a communication merely because the person takes one or more steps for the purpose of:

                     (a)  gaining access to what is made available online by someone else in the communication; or

(b)  receiving the electronic transmission of which the communication consists.

Example:    A person is not responsible for determining the content of the communication to the person of a web page merely because the person clicks on a link to gain access to the page.

It’s a good point, but I’m not sure at first impression why that doesn’t make the subscriber the maker.

Section 22(6) was introduced as part of the legislative clean-up of the mess made in the Music on Hold case –  to make it clear the telephone company was not communicating the music played by the subscriber to a caller when they were placed on hold. For example, para. 40 of the EM explains:

40.    The new s.22(6) provides that a communication other than a broadcast is taken to have been made by the person responsible for the content of the communication.  This provision relies on the extended definition of communicate in Item 6.  The provision has the effect that communications carriers and Internet Service Providers will not be directly liable for communicating material to the public via their networks if they are not responsible for determining the content of that material.

Meanwhile in the comments “Copyright Fanatic” asks why Optus TV Now is any different to using your TIVO at home? That (if the media reports are to be believed) is the $153 million question: is using someone else’s servers in some other point in cadastral space different to using your own equipment in the privacy of your own home?