The Federal Court of Australia has ruled that Optus does not infringe copyright in the TV programs recorded by users of its ’TV Now’ cloud-based recording service.

In Singtel Optus v National Rugby League Investments, Rares J 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. This 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.

Separately, the court found that the later streaming of recordings to a user’s viewing device was a communication made by the user, not by Optus. This finding is significant because copyright law prohibits communication of a copyright work “to the public”. If the ‘TV Now’ streaming was found to have been made by Optus, then it would have been a communication to the public – and thus an infringement. However, because the streaming was made by the user, the communication was by the user to his/herself and not to the public – and so was permitted.

The underlying rationale for this decision is that TV recordings made using a cloud-based service, such as ‘TV Now’, should be treated the same as recordings using home-based equipment, such as a VCR or a DVR – a rationale that has been adopted in similar cases in the US and Singapore.