The Full Court of the Federal Court of Australia has ruled that the Optus ‘TV Now’ cloud-based recording service infringes copyright.

In National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd, the Full Court upheld the appeal against the first instance decision, which had found that a recording of a TV show using a cloud-based service is made by the individual user of the service, not by the provider of the service. The first instance finding was significant, because Australian copyright law permits individuals to record a TV broadcast if it is for “private and domestic use” for watching at a later time – i.e. for “time-shifting”. Because the TV recordings by the Optus service were found to have been made by Optus’s customer rather than Optus itself, the “time shifting” exception applied and the recordings did not infringe copyright.

The Full Court came to a different view on the crucial question of who “made” the recordings. It found that the recordings were made either by Optus alone, or by Optus and its customer jointly. Either way, Optus made the recordings – and these recordings were not for its own “private and domestic use”.  As a result, Optus could not take advantage of the time shifting defence – and hence it was found liable for infringement of copyright in the TV shows recorded by its ‘TV Now’ service.

The Australian decision is consistent with the outcome of a similar case in France, but contrary to cases in the US and Singapore.