Now a new frontier has been reached, one in which we can watch football without needing to be home and in front of a television. Just as importantly, it is also one in which the business of football broadcasting has suddenly changed.
For a few years now new media technologies have allowed football to be viewed in real time and on the go on portable devices such as smartphones, laptops and tablet PCs. It is remarkable technology and one that will continue be embraced especially as smartphones and portable devices reach a larger portion of the community. The ways in which we consume football has kept up to pace with the dramatic expansion of technology.
Naturally, emerging technology and the evolution in the way football fans consume the game has meant that the value of the content has increased exponentially.
Only last year the AFL, Channel 7 and Telstra signed a five year $1.23 billion broadcast agreement, some $450m more than the previous agreement of that was signed in 2006. Broadcasting is big business and the AFL will have envisaged that that figure would only continue on its meteoric rise.
As part of this enormous figure, Telstra have paid $153 million for the exclusive rights to broadcast games on their network for the next five years. Using their AFL Live app, Telstra customers will be able to access every game live and without incurring any extra data usage from their normal allocated account. Last week, Telstra released the subscription prices for AFL Live, announcing that a season pass would cost $50, (meaning that a customer would be able to stream every game for the season), a monthly subscription for $10 and game by game subscription for $5, straight from their enabled portable device.
However, all throughout its history, new technology has brought about a certain fear in producers of content. This is certainly true of the most recent issue, in which an app that Optus offers to its customers has sparked controversy in the face of the AFL broadcast rights.
From the outset, it appears that Optus’ service resembles the service that Telstra offer to its customers. However, ‘resembles’ is the key word – the actual service Optus provides is an entirely different technology from the one that Telstra offers its customers. It is also not targeted towards AFL football in any way, shape or form.
The Optus TV Now app was launched in July last year and enables Optus customers to record any free-to-air programming to their enabled portable device to playback at a later time.
For Optus customers, it means that they can click record on an electronic program guide, and then start the playback as early as a few seconds from the commencement of that program, providing them with an almost real-time transmission. As Channel 7 shows AFL games live on their free-to-air network Optus customers can, for example, choose to record those telecasts and watch them almost immediately.
But considering that Telstra, not Optus, has paid $153 million for the exclusive rights to broadcast live games on their network it is not difficult to see the collision course currently unfolding right in front us.
Last week, when the two telecommunications giants met in the Sydney Federal Court, Justice Steven Rares found Optus not guilty of breaching the Copyright Act for a couple of reasons. In simple terms, Rares noted that the recordings that Optus customers make are kept separately on an Optus data storage server, and that the recordings belong to the customers, who are responsible each time one is requested. According to Rares, the technology that Optus TV Now utilises is comparable to the personal recording device that one might find in the private space of home, in which programs are recorded onto a hard drive disk from an electronic television guide and played back at a later time.
According to Section 111 of the Copyright Act, “a person [who] makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at time more convenient than the time when the broadcast is made … does not infringe copyright in the broadcast”.
Put simply, this means that if the customer is initiating recording and playback on their smartphone or portable device, of a game that Channel 7 broadcast live, it falls into the same category. The phone or portable device in this case is a substitute for a TV and recording device to view content in which they are legally entitled to view at their convenience. In Australia, recording to watch later on a personal recording device is a legal, common and convenient technology that everyone is accustomed too.
On ABC’s Lateline, Optus Spokeswoman Clare Gill reinforced this point, pointing out that it’s “about recording free-to-air television and playing it back at a time more convenient. It’s simply a personal video recording device, as is available today.”
What this means is that Telstra, who had thought that they had paid an enormous sum of money to the AFL for rights which they believed were exclusive, has in fact paid for something that Optus has found a way to get for nothing. Obviously Telstra wants to get value for the money that they have spent on these rights and, just as obviously, the AFL wants to ensure that it can continue to sell those rights for as much money as possible.
Naturally, Telstra and the AFL will appeal the technicalities of the issue, persisting with the claim that it is infringing copyright and the parameters of ‘live’ broadcasting.
AFL Chief Executive Andrew Demetriou vowed on ABC Radio that the AFL will do “everything in [its] power to protect [it’s] content”. In his eyes, Optus have not won the war yet. The case which is already encumbered in advanced technological terms and legal definition is only going to continue to get more complex.
The appeal will have huge implications for the value of the online part of the next broadcast rights agreement, which is why the AFL has quickly involved itself on Telstra’s side, keen to ensure that the value of their content is not diminished at a time when all other aspects of its content are growing in value.
The crux of the issue is exclusivity. Telstra believed that with the rights deal that they would be capable of providing to their customers exclusive football coverage to their portable devices.
Should the appeal be unsuccessful, Telstra will have been caught by a mis-step in the changing landscape of media consumption, the law surrounding fair use, and their competitors technologies on a large, costly and visible level. The AFL, in turn, will need to go back to the drawing board in terms of its sales pitch for the next online broadcast rights discussion.
Technology will continue to grow and expand, bringing with it myriad new broadcast opportunities. An unsuccessful appeal will insist that all uncharted technological territory be explored prior to the new discussion, and with it the potential for innovative broadcast.