We’ve previously highlighted how Copyright law in Australia is in a sense ‘broken’ as it fails to keep pace with emerging technologies. What is considered as the biggest flaw in copyright law in this country is the lack of a ‘fair use’ defence to copyright infringement, which covers the ‘recycling’ of content, where it is repurposed or modified by another author.
Copyright law in the United States does contain a ‘fair use’ defence unlike Australia, however even with this in place it appears that the law is still not keeping pace with the development of new technology.
The recent Supreme Court decision in the US involving the online TV service Aereo is a good example of this. Aereo was a service that allowed people to stream and record TV programs over the internet moments behind the traditional over-the-air broadcast. The court ruled that the service offered by Aereo was in fact illegal and it could not rely on the ‘fair use’ defence to run its business.
The court’s decision considered the technical aspect of the way the service operated and described it as piggy-backing on top of traditional over-the-air broadcasters who had invested a lot of money in producing content that Aereo was then on-selling and profiting off. The main problem was the access fee charged by Aereo was a lot less than that charged by the traditional cable channels that it was streaming online.
This meant that large amounts of money in access fees to the cable companies was at stake. The court found that by piggybacking off their service, even though it was provided through a different medium with added services, Aereo had the ability to damage the profitability of these cable channels. Its operations could therefore not be classified as ‘fair use’.
In 2012 an Australian decision involving TV Now had similar facts, with the service allowing for subscribers to request TV programs be recorded for them for later viewing online. Again the service was found to be breach copyright law as it piggybacked off traditional media companies.
Based on these cases it appears the courts are still of the opinion that emerging technology companies who recycle original content and add additional services not provided by the traditional media companies are in breach of the respective countries copyright laws.
Perhaps a softening of copyright law is needed, or at the very lease a ‘fair use’ defence added to the Australian laws to provide start-up companies with an opportunity to compete with traditional players, forcing them to innovate in the services they offer.