Postscript to the TV Now skirmish

In the aftermath of the Telstra v Optus dispute over TV Now, which offered, amongst other things, on demand recordings and viewing of AFL and NRL games on a user's mobile devices, Telstra has announced that it will be making an app available to subscribers (ie not just Telstra customers) that provides live broadcast of AFL games. For Bram's earlier analysis of the case see here and here. The High Court refused leave to appeal in September 2012 and the TV Now service was discontinued by Optus. Of course, the matter became the focus for debate over the intended scope of s111, and thus the issue remains relevant in the context of the ALRC reference on Copyright and the Digital Economy.

Fair Dealing Back in Favour?

After years of unpopularity at the hands of CC, fair dealing seems to be back in favour!
A couple of recent reads have suggested this:
I have finally got around to reading the Senate Standing Committee on Environment, Communications and the Arts report on The reporting of sports news and the emergence of digital media (May 2009). The Committee makes a couple of interesting recommendations:
5.23 'The committee recommends that the parliament should not amend copyright law to clarify the application of the news 'fair dealing' exception, unless future specific case law outcomes appear to warrant it.' (5.23) and 'The committee recommends that the government consider and respond to the Copyright Law Review Committee report and its recommendations.' (5.25)
According to the Senate Committeee Report most media organisations agreed that 'the current copyright laws, and particularly the fair dealing provisions, were working well, did not require amendment and were the best option for the future.' Well , I suspect what this really means is that they are worried about losing control over their own arrangements if they ask for legislative or other governmental intervention. What they are currently doing is not really a reflection of the fair dealing laws, but rather a gentlemen's agreement worked out in the shadow of fair dealing.
Further, the Report notes at 4.5: 'Maintaining the stauts quo would leave news media organisations and sporting bodies to continue to act on their own interpretations of fair dealing. There may be future legal action and this would provide direction as to how current fair dealing provisions appply to the digital media environment. The Attorney-General's Department agreed that legal proceedings on fair dealing and its application to digital media would be useful.' Too right, but no one wants to actually do it, let alone pay for it! Perhaps some of us may have learnt a valuable lesson from The Panel case? If not, then Premier Media Group might sounds some warning bells! Anyway, the Report continues: at 4.7 'Keeping the situation as it currently stands means that the responsibility for negotiating media accreditation agreements- and resolving disputes- will remain with news media and sporting orgnisations.'
There is also an interesting discussion of whether there should be copyright in a sporting event as a performance (more relevant to some sports than others one suspects, and no Fabio Grosso we haven't forgiven your performance at the 2006 World Cup!)
So it will be interesting to see if this may revive an interest in responding to the CLRC Copyright and Contract Report (2002).
It is difficult to overstate the importance of sports content in Australia, as the Report notes, both as news and as entertainment, and as the line between them becomes increasingly blurred, it is harder to distinguish between the two. The Report reflects a careful and balanced approach.
The other item is an article by Prof Steven Hetcher, who presented a paper at the recent Age of Digital Convergence Conference, on 'Using Social Norms to regulate Fan Fiction and Remix Culture' (forthcoming), a fun presentation and a thought provoking read.
Oh, and the Chaser is back tonight!