The decision was correct; a technology-neutral application of the long-established principle that recording free-to-air (FTA) TV for personal use at a more convenient time is legitimate, in Ovum’s view.

Ovum consumer IT analyst Tim Renowden says, “Australian sporting organisations would be better served by focusing on improving their own digital distribution platforms and services rather than drawing attention to their competitors’. It may be the case that online rights are not worth as much as rights-holders had hoped, but that is not necessarily a reason to alter legislation.”

The Optus TV Now product is essentially a subscription network PVR service accessible via iOS, Android, and PC devices. The Federal Court ruled that the service does not breach copyright as the recordings are limited to personal use, which is allowed under current legislation.

The panicked response from sports rightholders, and some hyperbolic commentary about TV Now destroying the value of current and future digital distribution agreements, presents an interesting case study of rights-holders failing to adapt their commercial models to meet the challenges of technological innovation. The government should resist the pressure to change the law to protect sports administrators at the expense of fans and innovation.

COMPPS, which is made up of representatives of leading sporting codes, is leading the campaign to alter copyright legislation to protect their rights as they see them.

However, Ovum thinks that such lobbying is unlikely to succeed. The court’s decision is not an anomaly; it is a consequence of a considered commitment to technology neutrality in the copyright regime. In other words, the legislation has worked just as intended and the commitment to technology neutrality is unlikely to be reversed.

There are many ways to view FTA TV on mobile devices by time- and place-shifting content. Some involve cloud services and some do not. It is difficult to see how to alter legislation in a way that would not discriminate arbitrarily between different technological approaches.