Tuesday, 4 March 2014

Telstra's David Thodey and the preferential treatment of internet content

The Sydney Morning Herald recently reported on Telstra's regional infrastructure engagements with Optus and the ACCC.  Perhaps of greater importance was the reference to net neutrality (or lack thereof) in Australia:
(Thodey) also called on the ACCC to allow Telstra and other telcos to strike deals that allow preferential broadband speeds for over-the-top players such as Skype and WhatsApp, who are willing to pay a premium.  US telecommunications providers AT&T, Verizon and Comcast have all made similar agreements in recent months, and Optus is set to trial such services later this year.  But the ACCC has previously been wary of any agreement that allows telecommunications networks to favour one type of content over another. 
"If I want to do a special arrangement with Google, then that's a commercial decision I make," Mr Thodey said. "As long as you, the consumer, know that, it should be fine. "I think it'd be fair [if Telstra had a deal with Google that gave its users better mobile network quality than Facebook's] ... because that's a commercial decision."
Telecommunications infrastructure has long been regarded as a public utility - especially in Australia with its distributed population that the tempts telcos to only roll out infrastructure in densely populated areas.  In the same way that the public are often guaranteed a uniform standard of service regardless of their geography, so too should the public be confident in their choice of content.  The internet is, and should be, the level playing field upon which David can slay Goliath.  It represents the space where an immature upstart can unseat the incumbent industry champion by simply offering a better, cheaper and/or simpler service. 

The ACCC would discourage innovation by allowing Thodey (and in turn, Australian industry) to place commercial considerations above these founding principles.  It may be a commercial decision to be made by the owners of infrastructure, but its the same founding principles that allow citizens to drive any make of car down a privately owned toll-road.

Wednesday, 26 February 2014

Read: The Internet is Fucked

Insightful and considered piece from Nilay Patel at The Verge on the nature of the internet as a utility and how the FCC has failed to protect consumer interests, including this gem:
"The Federal Communications Commission is ostensibly in charge of managing broadband deployment and regulating companies like AT&T and Comcast, but it’s shown no actual ability to do so in a focused and effective way — and when it tries, it does so in such a half-assed way that it gets smacked around in court and loses."[1]
[1] http://www.theverge.com/2014/2/25/5431382/the-internet-is-fucked 

Thursday, 20 February 2014

FCC to have a second attempt at net neutrality laws

In the wake of the US Court of Appeal's recent ruling against the FCC and its net neutrality regulations, the federal communications regulator has expressed a desire to have a second go.   FCC Chairman, Tom Wheeler, has stated:
In its Verizon v. FCC decision, the (Court) invited the Commission to act to preserve a free and open Internet. I intend to accept that invitation by proposing rules that will meet the court’s test for preventing improper blocking of and discrimination among Internet traffic, ensuring genuine transparency in how Internet Service Providers manage traffic, and enhancing competition. Preserving the Internet as an open platform for innovation and expression while providing certainty and predictability in the marketplace is an important responsibility of this agency.[1]
Jean-Baptiste-Siméon Chardin, The House of Cards, 1736-3
Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.[3]  Hopefully, in drafting the new regulations, the FCC won't make the same mistake of classifying broadband providers as information services instead of common carriers, like traditional telephony service providers.  

In drafting the Open Internet Order (the regulation which was the subject of the Court's examination), the FCC relied on section 706 of the Telecommunications Act which provides that the FCC shall "encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans" [2]  In response to this reliance, the Court stated that:
That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.
Reuters is reporting that the new rules will probably be finished in May or June this year.[4]

[1] http://www.fcc.gov/document/statement-fcc-chairman-tom-wheeler-fccs-open-internet-rules
[2] Telecommunications Act 1996 (United States), s706 (http://transition.fcc.gov/Reports/tcom1996.txt) 
[3] http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf (see page 4)
[4] http://www.reuters.com/article/2014/02/19/us-usa-fcc-internet-idUSBREA1I1H820140219
[Image]: Jean-Baptiste-Siméon Chardin, The House of Cards, 1736-3, public domain, reproduced from Wikimedia Commons



Saturday, 11 January 2014

US Supreme Court agrees to hear broadcasters in their final fight against Aereo

Today the United States Supreme Court granted a writ of certiorari (agreeing to hear a decision from a lower court) in respect of several broadcasters and their ongoing claim against Aereo, Inc. for copyright infringement of their television broadcasts.

As we've previously covered, Aereo operates a content delivery mechanism whereby a single antenna is allocated to each user in an attempt to circumvent (or operate wholly within - depending on your point of view) US copyright law with respect to television broadcasts.

No date has been set for the hearing.  

[Image] public domain image by Daderot

Wednesday, 27 November 2013

Creative Commons hits 4.0

Creative Commons, the copyright licensing regime originally designed to allow smaller content creators to more effectively license their work, has hit its fourth iteration. With the newest advancement, the Creative Commons regime accounts for database rights in the European Union and attempts to deal with the automatic revocation mechanism of earlier iterations.  For example, we've used it to reproduce this photograph taken by Stijn Hosdez.

In brief, Creative Commons is a legal framework that creates predefined content licenses and was established in 2001 by Hal Abselson, Lawrence Lessig and Eric Eldred.  The problem that Creative Commons attempted to fix was the potentially burdensome and expensive process of content licensing by individual agreement.  Instead of executing a licence agreement with individuals licensees, content owners could specify the terms of use for each article of content.

So, what's changed?

Sui generis database rights

The EU recognises that database compilations can be protected by sui generis property rights (but in contrast to other forms of copyright protection, databases are only protected for 15 years), where in other parts of the world a compiled database is essentially viewed as a compilation of facts; which on their own and in compiled form, cannot attract protection under law.  

The new Creative Commons 4.0 includes in the definition of copyright sui generis database rights (as set out in Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 and in related texts in other parts of the world).  In the Australian context, the creativity test in IceTV v Nine Network still stands as the defining characteristic of copyright.  There are no such sui generis property rights for database compilations in Australia.

Mechanisms for the reclaiming of rights lost automatically

Under 3.0, a breach of a term of a Creative Commons licence meant that the original grant was automatically revoked in respect of that end user.  Under 4.0, inadvertent breaches that are rectified within a timely manner may result in the resumption of rights granted to the end user.

The full press release is available at the Creative Commons website.

[Image] Creative Commons BY-NC-ND 2.0/Stijn Hosdez/Flickr (how timely...)

Friday, 5 July 2013

The evolution of live streaming

This article originally appeared in Vol 32, Issue 2 of the Communications Law Bulletin and has been re-republished here with permission from the CLB.   The article may be cited as: Matthew Tracey, 'The evolution of live streaming' (2013) 32(2) Communications Law Bulletin 11

The views are solely those of the author, Matthew Tracey.

1.                 Introduction

Free to air television has traditionally generated revenue for the broadcasters through advertising and retransmission by subscription television.  This model has been reliably protected through the copyright that subsists in a broadcast and the exclusive rights allocated to the broadcaster that allow them to charge third parties for access. 

The market for online content has risen exponentially in recent years as the proliferation of bandwidth and portable devices can provide high-quality transmission for more people in more places.  The precise boundaries of the copyright that subsists in a television broadcast have been tested recently in three different countries.  Accordingly, the owners of those exclusive rights have had their future profitability challenged by new technological models.  The article will examine the extent to which system architecture has defined the legality of three online free-to-air television streaming services: Optus' TVNow in Australia, TVCatchup in the United Kingdom and Aereo in the United States.

2.                 Optus

Optus, the number two telecommunications provider in Australia, launched 'TVNow' in late 2011. TVNow allowed Optus customers to instruct Optus servers to record live free-to-air television and store the contents in the cloud.  TV Now operated as a personal video recorder in a closed IP environment.  At the time of its launch, Optus made it clear that playback of the recorded content is on a one-to-one basis and is not 'broadcasting.'  The TVNow service could be used to view broadcast television including sports that were available on the free-to-air channels.

The National Rugby League (NRL) and the Australian Football League (AFL), as the rights holders in their respective sporting codes, granted an exclusive licence to Telstra for the right to stream iive NRL and AFL matches on its BigPond service.  The NRL, AFL and Telstra subsequently brought proceedings against Optus in the Federal Court of Australia for breach of copyright in a broadcast.  Rares J, at first instance, found that the recordings were made by the subscriber not Optus and fell within an exception to time-shift recording under section 111 of the Copyright Act 1968 (Cth) (the Australian Copyright Act) which allows a person to make a recording of a broadcast for private and domestic use by watching it at a more convenient time; also known as time-shifting. 

On appeal to the Full Federal Court, the Rares J's decision was overturned as the Court found that the recording was made jointly by Optus and the subscriber and the s111 exception was not applicable.  In a joint judgment of the Full Federal Court, Finn, Emmett and Bennett JJ found that:
"we consider that Optus’ role in the making of a copy – ie in capturing the broadcast and then in embodying its images and sounds in the hard disk – is so pervasive that, even though entirely automated, it cannot be disregarded when the “person” who does the act of copying is to be identified."[1]
The High Court of Australia refused Optus' leave for an appeal.
In the wake of the Full Federal Court's decision, Optus has urged the Australian Law Reform Commission to amend the Australian Copyright Act so as to facilitate the sharing of copyright material amongst different technology devices and platforms:
'It is important to ensure third parties that merely provide the essential connectivity between creators and users are not inadvertently caught on the wrong side of the law by virtue of activities that should not be properly considered as infringing upon right holders' interests.''[2]
The Optus decision in the Full Federal Court is focussed more on the recording of the broadcasting by Optus (or Optus and the subscriber jointly) than on the communication of that recorded broadcast to the public.  This is in part due to the defence available under s111 of the Australian Copyright Act that Optus submitted should apply to the service.  The trial judge, Rares J, concluded with some brevity that the TVNow service did not constitute a communication to the public where the recording was requested by an individual and viewed by that individual for their private purposes.  Despite this, the Full Federal Court's focus on the recording (as opposed to the subsequent communication) of the broadcast meant that this issue wasn't explored fully on appeal.

3.                 TV Catchup

TVCatchup, a service offering live steaming of free-to-air television to UK residents, was found to have breached copyright in a broadcast.  TVCatchup encoded separate streams for each of its users and only provides those streams to people in the UK who hold a valid TV licence - that is, those people who would otherwise be able to view the free-to-air broadcast. 

The claim was initially commenced in the UK High Court of Justice (HCJ) by ITV, Channel 4 and Channel 5.  The HCJ considered the nature of the TVCatchup service in light of EU and UK law.  Specifically, the Copyright, Designs and Patents Act 1988 (UK) (the UK Copyright Act) and recital 23 in the preamble to Directive 2001/29 of the European Parliament and of the Council (the EU Directive):
This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.[3]
The High Court of Justice found that while copyright subsists in a television broadcast, it was unclear whether the right of communication to the public was breached in a case where a person would otherwise lawfully be able to view the broadcast and the effect of the one-to-one nature of TVCatchup's service on existing law.  In light of this uncertainty, the HCJ referred the matter to the Court of Justice of the European Union (CJEU).

Not unlike Optus' TVNow service, TVCatchup relied on their technical architecture to the extent that they claimed they were not communicating to the public a broadcast in which the copyright was owned by the broadcaster.  The CJEU ultimately found that, despite their system design, TVCatchup was communicating the broadcast to the public in breach of the broadcaster's exclusive rights.

In their defence, TVCatchup relied on two distinct points: one for the broadcast of public service channels and one for the broadcast of digital channels.  In respect of the public service channels, TVCatchup successfully argued that re-transmission of Channel 3, Channel 4 and ITV was a cable service under s73 of the UK Copyright Act which allows cable operators to re-transmit those channels without a licence.  In respect of the digital channels, TVCatchup contended that their service 'is merely a technical means to ensure or improve reception of the terrestrial television broadcast in its catchment area.'[4]  The CJEU acknowledged that a technical intervention that was restricted only to the improvement of reception was not a communication within the meaning of the EU Directive.[5]  Ultimately, the CJEU rejected this defence in stating that 
'the intervention of such a technical means must be limited to maintaining or improving the quality of the reception of a pre-existing transmission and cannot be used for any other transmission.'[6]
The technical architecture of the service was designed in order to avoid a communication to the public at large by implementing a one-to-one transmission mode.  However, the CJEU focused more closely on the service as a whole (and not the individual transmissions) in finding that the service was communication to the public.  In doing so, they highlighted the general nature of the term 'public':
In the second place, in order to be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a ‘public’.  In that connection, it follows from the case-law of the Court that the term ‘public’ in Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons.  As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. In that connection, it is in particular relevant to ascertain the number of persons who have access to the same work at the same time and successively.  In that context, it is irrelevant whether the potential recipients access the communicated works through a one-to-one connection. That technique does not prevent a large number of persons having access to the same work at the same time. (emphasis added )[7]
The CJEU decision is an interpretation of EU law as requested by the HCJ.  The answers will now inform the HCJ in reaching its final decision.  However, as the HCJ did not refer the question of whether TVCatchup's operations fell within the s73 re-transmission exception of the UK Copyright Act, it appears that TVCatchup will be free to continue to re-transmit those channels to its subscribers despite the CJEU ruling.

4.                 Aereo

Aereo extends the TVCatchup and Optus technical model further by allocating each subscriber their own individual antenna.  Aereo operates out of a warehouse in Brooklyn, New York where they house thousands of small antennas with a diameter of a few centimetres.  Each Aereo subscriber rents an individual antenna that receives free to air television which is streamed live to the subscriber from an individual PVR.  Aereo has maintained that the nature of the legal relationship with its subscribers is in the form of a licence to use the antenna and DVR services and not the underlying content.  In practical terms, the Aereo model operates as a regular television except with a very long cable between the antenna that receives the broadcast and the screen that displays the content. 

Aereo streams broadcast television captured by its antennas which means only local content is included.  Aereo restricts its subscribers to those with a New York address but has recently announced plans to expand to New Jersey, Connecticut and Pennsylvania.  Earlier this year, after the completion of a US$38m funding round, Aereo announced that it would later expand its service to 22 more cities including Miami, Boston, Washington DC and Salt Lake City.

In July 2012, several networks including Fox, NBC and PBS sought an injunction from the United States District Court for the Southern District of New York to stop Aereo from streaming broadcasts to its subscribers.  Nathan J denied the application of the broadcasters who then appealed the decision to the Second Circuit Court of Appeal.  In April 2013, the Second Circuit affirmed the decision of Judge Alison Nathan in a 2-1 decision (Judge Denny Chin dissenting) thereby allowing Aereo to continue operation.  The Second Circuit Court of Appeal relied on an earlier 2008 decision involving subscription television provider Cablevision[8] where public broadcast was considered by the Court.  In following the precedent, the Second Circuit has further entrenched Aereo's legal foundation to work within the bounds of the US Copyright Act within the geographic boundaries of the Second Circuit.

Judge Christopher Droney's comments below highlight the importance of Aereo's multiple antenna model:
"It is beyond dispute that the transmission of a broadcast TV program received by an individual’s rooftop antenna to the TV in his living room is private, because only that individual can receive the transmission from that antenna, ensuring that the potential audience of that transmission is only one person. Plaintiffs have presented no reason why the result should be any different when that rooftop antenna is rented from Aereo and its signals transmitted over the internet: it remains the case that only one person can receive that antenna’s transmissions."[9]
A competitor to Aereo, aptly named Aereokiller, has been the subject of a similar claim by television broadcasters.  However, the application has been made in the Ninth Circuit of California where the court was not bound by the Second Circuit ruling in respect of Aereo.  Judge George Wu, in awarding the injunction, stated that:
"Second Circuit law has not been adopted in the Ninth Circuit, and this Court would find that the Ninth Circuit’s precedents do not support adopting the Second Circuit’s position on the issue. Instead, the Court would find that Defendants’ transmissions are public performances, and therefore infringe Plaintiffs’ exclusive right of public performance."[10]
Aereo has publically stated they are using a 'phased' approach to expansion so the Ninth Circuit ruling may not affect their expansion plans yet.  However, a negative ruling in the Ninth Circuit could restrict revenue opportunities for any live streaming entity given the large territory of that jurisdiction.

In April 2013, Fox and CBS have publically stated that they would consider withdrawing their broadcast from public airways and switch to a subscription only model.[11]  It appears that the broadcasters would be wary of subscription television providers, who currently pay large fees for retransmission rights, implanting a similar technical model to Aereo in order to retransmit for free the content they previously were paying for. 

In May 2013, the CEO of Time Warner Cable, Glenn Britt, told the Washington Post that: "what Aereo is doing to bring broadcast signals to its customers is interesting" and "if it is found legal, we could conceivably use similar technology."[12]  Also in May 2013, ABC announced that they would be making their broadcasts available on mobile devices free-of-charge to individuals that already subscribe to a pay television service.  This appears to serve two ends: first, it provides a competitive service to Aereo and for free (provided the user is a subscriber to a pay television service already) and second:  it aims to familiarise end users with mobile streaming of free-to-air television ahead of any attempt by pay television operators to offering the same free-to-air television broadcast content via an 'Aereo-type' model.

5.                 Conclusion

In reviewing the judgments of the various courts around the world, the key point of difference lies in their interpretation of what it means to communicate to the public.  The CJEU found that the architecture of the TVCatchup service was largely immaterial and noted that "it is irrelevant whether the potential recipients access the communicated works through a one-to-one connection.  That technique does not prevent a large number of persons having access to the same work at the same time."[13]  Conversely, the US Second Circuit Court of Appeals found that despite many people having access to the same transmission at the same time, "it remains the case that only one person can receive that antenna’s transmissions."[14]  While the Full Federal Court of Australia didn't directly opine on whether TVNow constituted a communication to the public, the decision at first instance appears to align more close with Aereo than TVCatchup.

It is clear that the courts are limited in their power to provide a solution to this problem.  The problem, in this author's opinion, is that the justification used by the courts to allow or restrict live streaming is based upon legislation that did not contemplate providing television over a delivery mechanism that differs from traditional broadcasting.  In each case, the solution lies with legislative change to give certainty to all interested parties.  As the High Court drew out in Australian Education Union v Department of Education and Children’s Services, a court must not adopt 
"a judicially constructed policy at the expense of the requisite consideration of the statutory text and its relatively clear purpose. In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose."[15]
The spread of information, culture and entertainment, in whatever form, should not rest upon such a fragmented and fragile foundation.  There remains some hope that the ALRC's report on the inquiry into Copyright and the Digital Economy, due out in November 2013, will guide the legislature in solving these problems.



[1] National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 at paragraph 67.
[2] Optus submission to the Copyright and Digital Economy Issues Paper, Australian Law Reform Commission, November 2012, http://www.alrc.gov.au/sites/default/files/subs/183._org_optus.pdf.
[3] ITV Broadcasting and ors v TVCatchup Ltd (2013) European Court of Justice C607/11, para 3.
[4] Ibid 27.
[5] see to that effect, Football Association Premier League and Others v QC Leisure and Others (C-403/08) paragraph 194 and Airfield and Canal Digitaal v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam) (C-431/09) paragraphs 74 and 79.
[6] ITV Broadcasting and ors v TVCatchup Ltd (2013) European Court of Justice C607/11, para 29.
[7] Ibid 31.
[8] Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2nd Cir. 2008).
[9] WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc. (2nd Cir. 2013) 12-2786 p29.
[10] NBC Universal Media, LLC, et al. v. Barry Driller, Inc., et al. (9th Cir. 2012) 12-6950 p3.
[11] New York Times, Aereo has TV Networks Circling the Wagons, 10 April 2013.
[12] The Washington Post, Time Warner Cable CEO wants to slim cable bundles, eyes Aereo’s technology, 3 May 2013.
[13] ITV Broadcasting and ors v TVCatchup Ltd (2013) European Court of Justice C607/11, para 31.
[14] WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc. (2nd Cir. 2013) 12-2786 p29.
[15] Australian Education Union v Department of Education and Children’s Services [2012] HCA 3 at [28].




Tuesday, 2 April 2013

US Second Circuit Court of Appeals: Aereo is A-okay

Rabbits, being the providers of chocolate and television antennas, continue to remain popular this Easter in the wake of a recent decision by the United States Second Circuit Court of Appeals.

In our last post, we examined a recent decision of the European Court of Justice that declared TVCatchup Ltd breached copyright in a broadcast by streaming online free to air television to UK residents.  Not unlike Optus' TVNow service, TVCatchup relied on their technical architecture to the extent that they thought they were not communicating to the public a broadcast in which the copyright was owned by the broadcaster.  The ECJ ultimately found that, despite their system design, TVCatchup was communicating the broadcast to the public in breach of the broadcaster's exclusive rights.

Enter Aereo...  We first examined this plucky start-up in November 2012.  In essence, Aereo takes the TVCatchup model and extends its one-to-one model further up the technical design.  With Aereo, each subscriber rents an individual antenna that receives free to air television which is streamed live to the subscriber.  Aereo has maintained that the nature of the legal relationship with its subscribers is in the form of a licence to use the aerial and DVR services and not the underlying content.  

The action was brought by Fox, PBS, Universal and others.


The decision was 2-1 in favour of Aereo, with Judge Droney's comments highlighted below:

It is beyond dispute that the transmission of a broadcast TV program received by an individual’s rooftop antenna to the TV in his living room is private, because only that individual can receive the transmission from that antenna, ensuring that the potential audience of that transmission is only one person. Plaintiffs have presented no reason why the result should be any different when that rooftop antenna is rented from Aereo and its signals transmitted over the internet: it remains the case that only one person can receive that antenna’s transmissions.[1]
The judgment in full can be found here.

[1] Judge Christopher Droney, Second Circuit Court of Appeals, Docket Nos. 12-2786-cv, 12-2807-cv
[Image] hillman54 via Creative Commons licence

Friday, 8 March 2013

First Optus, now TVCatchup: EU outlaws FTA streaming service

The retransmission of live television continues to fall foul of courts this week as TVCatchup, a UK service offering live steaming of free-to-air television to UK residents, was found to have breached copyright in a broadcast.  English law provides that copyright subsists in a broadcast.  TVCatchup encodes separate streams for each of its users and only provides those streams to people in the UK who hold a valid TV licence - that is, those people who would otherwise be able to view the free-to-air broadcast.  

The claim was initially commenced in the UK High Court of Justice (HCJ) by ITV and others.  The Court considered the nature of the TVCatchup service in light of EU and UK law.  Specifically, the Copyright, Designs and Patents Act 1988 (UK) and recital 23 in the preamble to Directive 2001/29:

This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts. [1]
The High Court of Justice found that while copyright subsists in a television broadcast, it was unclear whether the right of communication to the public was breached in a case where a person would otherwise lawfully be able to view the broadcast and the effect of the one-to-one nature of TVCatchup's service on existing law.  In light of this uncertainty, the HCJ referred the matter to the The European Court of Justice (ECJ).

The ECJ ruled that that TVCatchup was in breach of copyright in a broadcast because the service involved a communication to the public.  The technical architecture of the service was designed in order to avoid a communication to the public at large by implementing a one-to-one transmission mode.  However, the ECJ focused more closely on the service as a whole (and not the individual transmissions) in finding that the service was communication to the public.  In doing so, they highlighted the general nature of the term public:
In the second place, in order to be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a ‘public’.  In that connection, it follows from the case-law of the Court that the term ‘public’ in Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons.  As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. In that connection, it is in particular relevant to ascertain the number of persons who have access to the same work at the same time and successively.  In that context, it is irrelevant whether the potential recipients access the communicated works through a one-to-one connection. That technique does not prevent a large number of persons having access to the same work at the same time. (emphasis added) [2]

The TVCatchup decision is a further blow to the retransmission of live television.  In the wake of the Optus decision in Australia and TVCatchup in Europe, we turn our heads to Aereo in the United States who has implemeted a live streaming model whereby end-users rent a single antenna on the roof of Aereo HQ.  Will this model stand up to the DCMA?

[1]:  European Court of Justice, ITV Broadcasting and ors v TVCatchup Ltd (2013) C‑607/11, para 3.
[2]: European Court of Justice, ITV Broadcasting and ors v TVCatchup Ltd (2013) C‑607/11, para 31.

Thursday, 21 February 2013

Can the legislature please tune in: PPCA v CRA in the Federal Court of Australia

The recent decision of the Full Federal Court of Australia in Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited [2013] FCAFC 11 (13 February 2013)  is a victory for statutory interpretation at the expense of further muddying the lens through which content owners and delivery agents interact in the online world.

The decision is an appeal from a single judge of the FCA that considers, essentially, whether an internet stream of a radio program falls within the definition of a broadcast service under a licence agreement between the Phonographic Performance Company of Australia (PPCA) and Commercial Radio Australia (CRA).  

In coming to their conclusions, their Honours examined and then dispensed with extrinsic material (such as parliamentary reports) and instead relied on the definition of broadcast service in light of the purpose of the Broadcasting Services Act 1992 (Cth).  The definition is somewhat complex as it allows for the Minister, by determination, to exclude certain services from the definition of a broadcast service.  Further, a determination issued in September 2002 contains an exemption to the exclusion.

In short, the definition of a broadcast service is:
  • (BSA definition) a service that delivers radio programs to persons have equipment appropriate for receiving that service whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
    • a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
    • a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or
    • (BSA exception) a service that the Minister determines not to fall within the definition:
      • (2002 determination) a service that makes available television programs or radio programs using the Internet, other than:
        • a service that delivers television programs or radio programs using the broadcasting services bands.
By taking the above steps into account, the Court found that a broadcasting service could:
  • be delivered by the use of any means, including the broadcasting services bands;
  • be delivered or made available using the Internet; or
  • be delivered or made available using the Internet and the broadcasting services bands.
Ultimately the Court found that only the first and third bullet points above can be considered a broadcasting service within the definition of the BSA.  The licence agreement between CRA and PPCA utilises the BSA (via s10 of the Copyright Act 1968 (Cth)) for the definition of a broadcasting service.  As a result, an internet stream of a radio program does not fall within the definition of a broadcasting service and is therefore outside the scope of the licence granted to CRA.

The decision could be viewed as a victory for purposive statutory interpretation (as the Court made out that it was).  However, we are left in the unenviable position where radio programs could be delivered through the broadcasting services bands if the internet service over which it is delivered is a datacasting service [1] - albeit a small possibility.  Above all, it is an example of where the judicature is ill-equipped to address emerging technical issues that are better resolved through the contracting party.  This is by no means an attack of the courts (at first instance, on appeal or generally) or their ability to deal with and decide on technological issues.  The judicature has no business in re-drafting commercial agreements.  Rather, it applies the law as it is written to the issues before it.  

The legislature should tune into the discord that has arisen as a result of this decision:  that the regulation of content is more concerned with the method of its delivery than the nature of its content.  The CRA unsuccessfully argued that a broadcast service should not be concerned with how content reaches the listener but rather that the broadcasting service is the radio program itself.  

The CRA and the PPCA executed their licence agreement in June 2000: a period where internet streaming would not have been a major concern of either party.  In the thirteen years since the ink has dried, internet streaming has become a popular way for listeners to access radio programs.  Presumably, the rationale of the PPCA for commencing proceedings against the PPCA was the increasing popularity of radio streaming on the internet and the potential to extract additional licence fees from the CRA (especially where previous attempts have been somewhat successful).

So where are we left?  I would expect the CRA to consider an appeal to the High Court.  However, I doubt that they would be successful.  Even if the CRA loses an appeal, the consideration of the case by the High Court may place additional pressure on the legislature to consider how the definition of a broadcasting service is equipped to handle a converged media and technological environment.


[1] See Karl Schaffarczyk's helpful analysis at The Conversation

Thursday, 24 January 2013

Digital dividend auction - who's in who's out?

Despite assertions that the reserve price is too high, the nation's top three telcos have announced that they plan to take part in the Commonwealth's auction of 700 MHz and 2.5 GHz spectrum.  Both blocks represent prime waterfront spectrum although they have slightly different properties.  The lower 700 MHz block is currently used for analogue television broadcasting and has high data capacity as well as superior propagation through buildings.  Most telcos use various spectrum ranges for the deployment of their networks and most devices are able to operate on most, if not, all of these ranges.  The auction is open to anyone who wishes to participate (as long as they pay the $25,000 application fee) but it is no secret that wireless carriers are aware of the rising demand for mobile broadband that is outstripped demand for traditional products like voice and text.  The combination of 700 MHz and 2.5 GHz spectrum represents that basis for a national deployment of high-speed LTE mobile networks.

Vodafone Hutchison Australia had previously announced that it "you don't buy anything at the wrong price."  VHA, which has suffered customer losses in recent years, would be looked to minimise unnecessary capital expenditure as it looks towards sharing of existing spectrum with Optus instead of purchasing rights to new spectrum.  It has announced that it will participate in the less sought-after 2.5 GHz auction - perhaps in an attempt to enhance its regional presence.

Optus consumer head Keith Russel has told the media that "there are always alternative strategies to spectrum - spectrum's not the only thing."  Telstra has always looked like a keen participant as it seeks to ensure that it's network remains superior in speed and quality to its nearest competitors.

It makes sense for the telcos to baulk at the announced reserve auction prices.  Consistent behaviour in response to the prices doesn't signal any individual pricing behaviour and may cause Senator Conroy to reconsider the price if it appears that all spectrum lots might not be sold.  With the Commonwealth relying on the proceeds of the auction (and perhaps tantalised by profitable auctions of the 700 MHz band in the US) in the lead up to the Federal Budget, the pantomime between the DBCDE and the telcos is nothing but expected brinkmanship on the eve of large capital expenditure.


More details about the digital dividend auction can be found here.

Monday, 17 December 2012

Digital dividend auction reserve prices set by DBCDE

$1.36



With this much coin you could:

$1.36 is the reserve price per MHz per population that Senator Stephen Conroy has set in instructions to the ACMA for the digital dividend auction in April 2013.


Optus thinks it's too high. 

[Image]: Used under Creative Commons.  Original by avlxyz

Wednesday, 28 November 2012

Optus urges ALRC to amend copyright legislation in wake of TV Now decision


Optus has urged for amendments to legislation that would provide for copyright material to be shared amongst different technology devices and platforms.

Optus made their position clear in a submission to the Australian Law Reform Commission inquiry into Australia's copyright laws. 

"It is important to ensure third parties that merely provide the essential connectivity between creators and users are not inadvertently caught on the wrong side of the law by virtue of activities that should not be properly considered as infringing upon right holders' interests,'' [1]

Optus made comparisons to physical mail networks that do not face offences under copyright legislation for transporting materials and content subject to copyright.  "

In a converged environment, the differences between technologies are becoming increasingly blurred and technological boundaries are harder to define. As an example, a smart TV can simultaneously provide access to the internet and a broadcast service to deliver the same content.'' [2]

In the wake of the TV Now decision, it is unsurprising the Optus is seeking to have Australia's copyright legislation amended to afford greater flexibility to digital carriers.   The Optus TV Now service offered Optus customers to opportunity to view almost-live free-to-air television on their mobile phone.  Telstra, the NRL and the AFL sought to stop the TV Now service as they had recently signed an agreement for Telstra to purchase exclusive streaming viewing rights on BigPond.  The Federal Court initially ruled that Optus did not breach copyright in rebroadcasting NRL and AFL footage.  However, this was later overturned on appeal and Optus was denied special leave by the High Court.  The TV Now service essentially provided for a PVR to be housed within Optus premises and operated remotely by the customer.

Attempts to skew the free-to-air broadcast model towards mobile devices have begun to emerge in other parts of the world.  In the United States, Aereo, a start-up mobile service has a data centre in New York that provides for streaming of over twenty free-to-air broadcast channels.  On the roof of their data centre, Aereo, has many tiny antennas that Aereo claims are indistinguishable from those on top of many consumer televisions.  Aereo contends that each of their customers is merely renting the antenna.  There is litigation underway in the United States in respect of this service.

[1] Optus submission to the ALRC, November 2012, http://www.alrc.gov.au/sites/default/files/subs/183._org_optus.pdf
[2] Optus submission to the ALRC, November 2012, http://www.alrc.gov.au/sites/default/files/subs/183._org_optus.pdf


Wednesday, 21 November 2012

Summary of journalist shield laws in Australia

Recent legislative changes across Australia has enhanced the protection available to journalists and their sources.  To clarify the national position, we have prepared a table that sets out the different regimes as they apply state by state.  Click the image for the full table.



Friday, 7 September 2012

High Court rejects Optus TV special leave application

The High Court has rejected the special leave application filed by Optus in the TV Now dispute with Telstra as published by ZDNet this morning.  This means that Optus has lost its battle with Telstra over copyright infringement for time-shifted broadcasts of live sport on computers and mobile devices.

Friday, 8 June 2012

Victoria gets on board with journalist shield laws

The Evidence Amendment (Journalist Privilege) Bill 2012 (Vic) was introduced into the Victorian Legislative Assembly on 6 June 2012.  It provides for similar protections that exist in New South Wales for journalists that would otherwise be compelled to disclose the identity of a source under examination in a Victorian court. 

The legislation as drafted has passed a second reading and in its current form is very similar to the position north of the border.  The drafters have chosen to define journalist as a person engaged in the profession or occupation of journalism in connection with the publication of information, comment, opinion or analysis in a news medium which presumably allows the shield to cover blogs as a news medium and bloggers as journalists as long as they are within the scope of the formal definition. 

The equivalent Commonwealth provisions were not initially intended to cover bloggers and those outside the traditional boundaries of journalism.  However, late amendments by Greens Senator, Scott Ludlum, expanded the reach of the protection.

Friday, 13 April 2012

Judgment day for iiNet

Update: The High Court has unanimously dismissed the appeal from the Full Federal Court.  A media statement is available here.

In a release to the ASX, iiNet (ASX:IIN) has announced that the High Court of Australia will hand down judgment in Roadshow & Ors vs iiNet Limited on Friday, 20 April 2012 at 10.00am.  Michael Malone, iiNet Chief Executive Officer will be conducting a media conference at 1pm on the same day.  By way of background, see our earlier post on Roadshow & Ors vs iiNet Limited in the Federal Court.

Tuesday, 3 April 2012

The 'casualisation' of copyright enforcement

Attempts to easily and cheaply enforce copyright in digitally distributed content may mean that copyright infringement and enforcement will become a more relaxed process. 

Late last year we wrote about the announcement that five major Australian internet service providers would work together in an effort to educate and enforce end-users and copyright infringement.  A similar scheme has been collecting momentum in the United States of America.  The Centre for Copyright Information was formed in September 2011 and recently announced the appointment of Jill Lesser as its Executive Director.  The CCI has brought in the American Arbitration Association to assist in the settlement of copyright disputes between rights-holders and end-users.  In a typical copyright infringement scenario, plaintiffs will prepare infringement notices to serve on end-users that set out the maximum penalties for infringement along with an offer of settlement for far less. 

This model represents a more effective recoupment scheme for the rights-holders as opposed to litigation for several reasons.  Most importantly, it's cheaper and can often avoid negative publicity associated with seeking maximum penalties against users who may not be aware of, or have the capacity to afford the penalties associated with, their offences under law. 

A dispute resolution scheme integrated into the copyright enforcement mechanism represents the natural evolution of contemporary content monetisation models.  As many providers move towards a subscription based for unlimited access to a wide catalogue, so too will coordinated bodies (like the CCI and Australia's solution) act as an overarching catch-all agency that can monetise end-users actions after the fact.  The framing of disputes would no longer be based upon the identity of the rights-holders.  That is, Twentieth Century Fox suing for infringement of their rights.  Rather, all rights-holders could seek their remedies concurrently and with shared expense.  With any luck, consumers may benefit as well.  The educational arm of all collective rights enforcement groups has traditionally manifested as a expression of the law giving rise to the rights-holders powers under legislation.  That is, you are receiving this notice because we have the power to enforce our rights.  In the end, collective rights enforcement groups may 'casualise' copyright infringement; especially when the courts are removed from the settlement procedure.

[Image] Creative Commons license.  Paraflyer at Flickr.