Stone the crows! Technology smarts trump property rights!

The Crows are not especially smart at programming digital whizbangery (what with having fat claws and all) but they know enough to recognise people pinching property when they see it.

Of this there is a bit about and there will soon be a big bit more.

In a judgement which undoubtedly is as good in law as it is as ridiculous in the real world, Federal Court Judge Stephen Rares held that Optus customers can watch AFL and NRL games on their phones on a two minutes delay, using their provider’s TV Now service, even though the carrier does not own the broadcast rights.[i]

Justice Rares argues that as consumers access the service, and do so for their own private use, there is no infringement of copyright:

Optus contended that each user of the TV Now service, rather than it, had recorded, or made the recording, and played it without any infringement of copyright. Optus relied on an exception in s111 of the Copyright Act. In essence, the exception allows a person to make a film, or copy, or recording of a broadcast solely for his or her private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made. If the person does make a copy in those circumstances, then the making of the recording will not infringe copyright in the broadcast.

Justice Rares concluded:

The user of the TV Now service, rather than Optus, was responsible for electronically transmitting, or making available online, the recording he or she had recorded. That was because by clicking the “play” button, the user caused the recording to be streamed to his or her compatible device and only he or she, or persons he or she invited, could watch it. [ii]

This is obviously very bad for people who create content and those they sell or license it to. With their business model less under attack than exploded, it’s no surprise the football codes are appealing.[iii] Or that there is bipartisan support in Canberra to keep commercial footy on the free to air TV field – because nobody will pay a bucket of money for a meaningless broadcast monopoly.[iv]

But it seems certain that technology will keep fragmenting markets for sports broadcasting and, with the law always one step behind, providers may have to retreat behind pay walls. As Michael Gordon-Smith suggests, Justice Rares’ judgement is good for pay TV providers:

Their relationship with their audience is governed by contract. They can control leaks and should therefore be more attractive to content providers, particularly those with a lot of immediate content, such as the Olympics. [v]

So be it, the Crows can’t find a clause in the Constitution that guarantees us all the right to watch the match of the round for free.

But what worries them is the assumption that technology smarts trumps property rights. Stilgherrian suggests in the case of elite sports, technology can cut out the middle-person with codes selling direct to consumers.

How many fans would be prepared to pay, say $20 a month for ad-free coverage of every match live or on-demand playback? Plenty. …. TV production costs will continue to fall. Video cameras will get smaller, smarter, cheaper and more numerous. With a few thousand HD smartphones in the stadium, a few robot model helicopters overhead, and software picking the best pictures the coverage could even produce itself. In an age of pervasive video, almost-free data distribution and limitless choice, will sports broadcasting even be a business anymore? [vi]

Oh brave new footy field that has such producers around it – apart from one problem. Comms companies and consumers will not pay for what they can access free and to hell with the rights of content producers and anybody mug enough to buy rights or licences to their work. And the more the question of who can download what becomes a matter of technology not morality the harder it will be for anybody to defend their right to charge for what they own.

According to the Australian Content Industry Group, by 2016 some 8 million of us will “access content online illegally”. [vii]

There are all sorts of justifications for this, ranging from the acute to the inane. As an appalling excuse for pinching other people’s effort, Frank La Rue’s is hard to beat. According to the UN’s Special Rapporteur on the promotion and protection of the right to freedom and expression, “cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, (is) disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.” [viii]

But serious scholars also argue economic utility dictates everything online is up for grabs.

Thus, University of Melbourne economists Paul Jensen and Beth Webster suggest, “monopoly rights are not granted because a person has a ‘natural’ right to the fruits of their creation, nor is it to reward the artist, author or film maker for their efforts per se. An increase in the provision of creative works is only desirable when it can be shown that too few creative works are being produced.”

And, as for the idea people make their livings by variously creating and selling works of imagination, providing information, playing sport or performing: “rewards have to be seen in the context of the whole society. How much should doctors who save lives, civil engineers who bring us clean drinking water and teachers who teach our children to read be paid?”[ix]

Which spectacularly misses the point in a way that people with secure public sector incomes easily do. Short of artists, and sports people, collecting admission or selling their works in person copyright is the only sure way by paying people for what they create and perform and if nobody watches or reads it they do not get paid.

To assume anybody can help themselves to recorded or broadcast work is to deny the creators and the people who produce and present, market and merchandise, their work an income.

To the Crows it looks like theft, making it a problem of morality as much as economics.

Comment from Geoffrey Luck on Issue 103

Stephen Matchett’s weekly crow-scratching is eagerly awaited, ravenously devoured, and mostly highly enjoyed. But occasionally he strays from his comfortable paths. He knows, as he admits, sod-all about submarines. He also knows sod-all about cars. So for a writer who is so carefully nuanced on other matters, he should refrain from the cub reporter’s cheap shot of citing the P76 as the benchmark of engineering failure. If he cared to look beneath the bonnet, as it were, he would find that the car:

. Set an Australian record for pre-orders (3000) when it was announced, because of its advanced engineering.

. Was the first Australian car to use an aluminium engine.

. Was the first Australian car to use disk brakes.

. Was the first medium sized car (alongside Holden, Ford & Valiant) with McPherson strut front suspension.

. The first Australian car to have welded door hinges.

. The first Australian-made car to have windscreen and rear window vulcanised in place. (Now everyone does it).

. Handled like a European car, despite its size.

The reasons for its market failure were a) lack of finance and abandonment by the British parent company, itself going under, and b) exactly the same issues of small scale and high production costs that are bugging what’s left of the industry today. FWIW, the P76 cars produced in the last week of the plant – after the decision to close it had already been taken – were capable successfully modified cars, many of which are still on the road 40 years later. I bought one and sold it three years later for twice what I paid for it. And not to a museum!

As for submarines, only half last week’s debate was about whether a new sub should be built or bought. By far the more important point was what capability and range an Australian built boat would have.The answer, decisively, was very little.I would have thought Stephen would come down heavily against local pork barrelling. He might also recognise that Australians have the moral defect of always wanting to get their defence on the cheap.

And the Collins? It was built in two pieces, in two different countries. When the Swedish-built bow sections were delivered, they were “out” by one and a half inches. The pieces didn’t fit together. A great compliment to the Australian industry – as its CEO would know from observing the mess from his previous role in RR submarines.


Geoffrey Luck


[i] Sally Jackson, “Optus wins landmark TV Now copyright case,” The Australian February 1

[ii] Federal Court of Australia, “Singtel Optus vs National Rugby League Investments Pty Ltd (No 2) (2012) FCA 34 Rares” @ recovered on February 11

[iii] Milanda Rout and Glenda Korporall, “AFL, NRL to appeal call on copyright,” The Australian, February 11

[iv] David Crowe and John McDuling, “TV sport row spurs Canberra to act,” The Australian Financial Review, February 9

[v] Michael Gordon-Smith, “Optus win upsets status quo in TV,” The Australian February 3

[vi] Stilgherrian, “Sport has to think outside the box,” Sydney Morning Herald, February 7

[vii] Australian Content Industry Group, “The impact of internet piracy on the Australian economy,” February 2011, 5 @ recovered on February 12

[viii] Frank La Rue, “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,” United Nations General Assembly, May 16 2011 @ 21 recovered on February 11

[ix] Paul Jensen and Beth Webster, “Hollywood reads from the wrong script,” The Australian Financial Review, January 23