Is Optus "stealing" The Footy?
Does a Personal Video Recorder in the cloud clash with broadcast rights?
Football is a religion in Australia and broadcast rights for the AFL and NRL are the holy grail of entertainment. Seven, Foxtel and Telstra will pay $1.25 billion over the next five years for the rights to broadcast AFL matches. Foxtel subscribers will see every match live, either via the traditional Foxtel service, via Telstra’s T-Box or via Microsoft’s Xbox 360. Telstra is also offering every match live to its mobile customers, for $5 per match, $10 per month or $50 per season.
Telstra paid $153 million to the AFL for the right to simulcast live footy matches to mobile devices, so the AFL is obviously upset that Optus’ TV Now service lets you watch free-to-air television with only a slight delay. TV Now isn’t the first service to offer such features, but the sporting heavyweights have decided now is the time to fight back.
The AFL claims that Optus is stealing the footy coverage, but the courts found in Optus’ favour. The fight is far from over and the Federal government has even threaten to step in and change the law to protect broadcasting deals. Changing the law to make exemptions for powerful players is generally bad policymaking and it’s Australian viewers who will pay the price.
Under Australian copyright law, you’re allowed to record television to watch later – something known as time-shifting. It doesn’t matter whether it’s the AFL Grand Final or repeats or Gilligan’s Island, all free-to-air broadcasts are treated equally. Optus has extended this concept to mobile devices with TV Now, offering a Personal Video Recorder in the cloud so you can stream recordings straight to your smartphone. Optus isn’t broadcasting live television, only letting you watch something you recorded earlier.
The trouble is that, like many lounge room-based PVRs, TV Now offers “chasing playback” – letting you watch the start of a show while you’re still recording the end. So you can record the football and then start watching on a 90-second delay. The AFL says this is as good as live and wants it stopped, but the courts believe that TV Now falls under the same laws that let you time-shift television at home. The fact you’re watching it on a mobile device is irrelevant.
The core of the problem is that the AFL/Telstra deal sold off something that isn’t for sale; the public’s rights under copyright law. The AFL sold Telstra the exclusive right to simulcast live football matches to mobile devices. But the AFL seems to believe that Telstra’s service should be the only way to watch football on mobile devices. They’re not the same thing. It’s like the AFL granting Telstra the right to sell stubby holders in team colours but Telstra believing it has the exclusive right to sell beer.
Either the AFL sold something it didn’t have the right to sell or Telstra didn’t understand what it was buying. Either way, the government shouldn’t change the law to let them get away with it.