Optus appeals TV Now ruling to High Court

Optus will appeal the full Federal Court decision that banned its TV Now free-to-air recording service last month.

The telco's chief executive Paul O'Sullivan told media this afternoon that the company would seek leave to appeal the decision to the High Court in a bid to overturn the decision holding back the service from public use.

Despite getting a tick under an initial court judgment in February, the nascent product - which allows users to record and view free-to-air programs later on mobiles - was banned by the full Federal Court in April for infringing the copyright of sporting bodies the AFL and NRL.

The service was perceived to threaten Telstra's $153 million deal for exclusive mobile broadcast rights to AFL games, as well as future exlcusive rights to NRL games.

"We believe the TV Now case is extremely important in deciding the future for innovation, consumer choice and competition," said O'Sullivan, who said the case had wider implications for cloud storage services.

Legal experts said the full Federal Court decision posed concerns for the liability of other cloud service and storage providers in automating the storage or transmission of copyright material by users.

The full bench said its decision only related to Optus' infringement of the sporting bodies' copyright. IT lawyer Matt Phipps said it did not "lay out a roadmap of how to make a non-infringing system".

But Australian Copyright Council executive director Fiona Phillips said current and future cloud business models would simply have to take copyright licensing into account.

Before Optus' appeal is heard, the telco must first be granted leave from the Federal Court, whose decision will be based on whether the issue poses a threat to legislative principles.

O'Sullivan said he was "highly confident" the court would find it worthy of being heard.

"This is a really, really important area and I think that's been acknowledged by the [full Federal] court in their judgement," he said.

"Because it's such a fundamental issue, because we're dealing here with new technologies and it's an area in which the law is having to be involved and the courts are having to interpret that, we believe it's an issue of national significance and of importance to the courts and therefore we're highly confident that it should get taken up for appeal."

Both sides in the battle have lobbied Government to amend copyright to reflect their respective views on the issue, potentially leading to moves that would strike out "time-shifting" provisions introduced to copyright legislation in 2006.

However, any legislative changes are likely to be held off until the Australian Law Reform Commission completes its inquiry into copyright reform.

O'Sullivan, who equated the TV Now service to "a modern version of the video recorder", said TV Now could ultimately be monetised by free-to-air broadcasters.

He said the telco had held informal discussions with the broadcasters but held off on any formal negotiations ahead of further court action.

"We're at the forefront here of copyright law and of technology and how the two relate," he said.

"I think the market is sensibly sitting back and seeing how the two evolve."