The Full Court (Finn, Emmett and Bennett JJ) has unanimously allowed the appeal from Rares J’s finding that Optus TV Now did not infringe the copyright held by the AFL, the NRL and Telstra in broadcasts (or films) of the footy.
Based on the summary, the Full Court has found that Optus either made the copies of the broadcast and films or Optus and the subscriber did so jointly.
As Optus was the (or a) maker, it could not rely on the “home taping” defence provided s 111 as the copy was hardly for “private and domestic use”.
This is, of course, the opposite result to that reached by the Second Circuit in the US in the Cartoon Network case in different legislative setting.
The second point would seem to follow necessarily from the first, but the first could render the protection of s 22(6) largely nugatory to those who carry transmissions of infringing material across their networks. The reasoning on this point will need closer consideration. Of course, Optus was storing the copy longer than may be the case of an ISP whose network is used to download some infringing material. Wonder what this provision means?
National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd  FCAFC 59
Lid dip Australian Copyright Council