MyTVR have now launched their Australian service, which allows Australians to schedule free-to-air television programmes to be recorded by the company and stream the recording to their home PCs or mobile devices.
The interesting question is whether MyTVR’s service is legal for Australians to use (and, of course, legal for MyTVR to offer) under Australian copyright law. I assume here that MyTVR is not licensing the right to provide the service from television broadcasters, but is instead relying on the protection granted to Australians to ‘time-shift’ free to air television. (This conclusion is supported by the lack of mention in the terms and conditions of any licence granted by MyTVR to its users from the Broadcasters or holders of underlying rights.)
This is an issue that has been important in Australian copyright doctrine for quite a while. In the US, a flexible fair use defence exists that allows innovators to investigate and begin to offer a service without immediately being prevented from doing so by copyright owners. This is how the VCR was developed, for example; in the US, Sony was able to argue that it was fair use for users to record television programs for their own personal use. In Australia, by contrast, there is no broad ‘fair use’ exception, which means that if the personal use does not fit into a category like ‘research and study’, ‘criticism and review’, ‘news reporting’, or, now, ‘parody or satire’, it is immediately prohibited. It took twenty years for the law to catch up and add an exception for time-shifting television broadcasts; at least ten years to allow people to make digital copies of music they own to play on their own devices; and it still isn’t legal to make a copy of a DVD you own to either backup or play on a portable device.