Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2)

In the case of Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2), the Federal Court was tasked with determining whether Optus infringed copyright in broadcasts by providing its users with a service that allowed them to record free-to-air television broadcasts and play them on their PCs, mobile telephones, or other compatible devices. The court had to decide whether the service provider or the user "made" a cinematographic film of the broadcast when the user clicked the "record" button, and if so, whether this constituted an infringement of copyright under the Copyright Act 1968 (Cth). Additionally, the court examined whether the making of recordings in various formats used by compatible devices infringed copyright in the broadcasts and if the users' actions constituted a private and domestic use as per section 111 of the Act. The court also considered whether streaming the recording to the user's device constituted a communication to the public and if the digital file of the recording qualified as an "article" or "article or thing" under the Act.

The court ruled that the service provider did not infringe copyright in the broadcasts by providing the service to its users. The reasoning was that when a user clicked the "record" button, they alone performed the acts involved in recording the copyright works on Optus' equipment. The users did not infringe copyright as they made the recordings for private and domestic use within the meaning of sections 111(1) and (2) of the Act. The court found that when a user clicked the "play" button, they communicated the recording to their compatible device for viewing purposes. This communication was not made "to the public" as it was for private and domestic use, and thus, there was no infringement under sections 86(c) or 87(c). The digital file of the recording was not considered an "article" or "article or thing" under sections 103 or 111(3)(d) of the Act.

The court concluded that Optus had succeeded on the issues presented. The parties were directed to confer and prepare draft declarations and orders to give effect to these reasons. The proceedings were to be relisted for the making of orders to implement the court's findings. Optus was awarded costs for determining the separate issues.