Reports of people the world over watching coverage of the Olympics via BBC’s online streaming portal abound. The reasons for this behaviour vary in the detail, but the common feature is: local coverage of the Olympics stinks.
In the United States, NBC’s decision to delay coverage has resulted in significant backlash and ridicule. The hashtag #NBCfail has been trending strongly on twitter with constant complaints of the shortcomings of NBC’s coverage.
A popular response has been to access highlights coverage and live streaming directly from the BBC sports portal.
But all of this is old news: circumvention of these geoblocks is commonplace and trivial with the use of Virtual Private Networks and proxy systems. Popular services include strongVPN, Hide My Ass! (which is currently marketing a summer sports special, but dare not use the word “Olympic”), and the DNS/proxy based Unblock Us.
But how legal is this?
Are laws being broken? Should those of us watching the Olympics in this fashion expect the police at our door or a nastygram from our internet provider?
The obvious answer is that the BBC has tried to prevent your access, you have circumvented their attempt and accessed their content anyway, and therefore watching their content is infringing copyright. It’s common sense - just like breaking past a locked door - right?
Australian copyright law is not quite so simple.
To begin with, it’s very difficult to shoehorn streaming video media into a definition contained within the Copyright Act. Classification as “cinematograph film” is tricky, unless copies are made by the viewer (the ephemeral copy in RAM which is used during playback does not count).
Classifying highlights and replay coverage as a “broadcast” is problematic due to its on-demand and point-to-point nature. Live coverage fits poorly into the definition of a television broadcast.
Working the first definition, the issue here is that the geoblocking (an access control technological protection measure) is being circumvented.
But a specific exemption applies:
if the work … is a cinematograph film … [and the protection measure] controls geographic market segmentation by preventing the playback in Australia of a non-infringing copy … acquired outside Australia.
So it appears that bypassing geoblocks is permitted under Australian Law, so long as the content is non-infringing.
Is the content infringing?
The BBC’s terms and conditions for personal use explicitly deny certain content (such as video or live television services) from being accessed from outside the United Kingdom.
This contractual requirement seems to fly in the face of the exemption for circumventing technical protection measures. Although there is no case law to guide us whether Australian law overrides a contractual non-export condition, it is unlikely that a court would uphold this interpretation.
The copyright protections available for accessing protected broadcast material such as the BBC’s live content have been made only with Pay TV in mind. These provisions are limited to encrypted broadcasts only.
Further, the BBC’s terms and conditions also forbid access to live TV to anyone without a UK television licence. This is a critical point, as very few people outside of UK would hold one.
While this area of law is untested by courts, it is quite clear that bypassing the BBC’s geoblocks to access coverage of the Olympics has the potential to land someone in hot water. Despite the possible PR disaster that accompanies enforcement action by copyright holders, no-one wants to be the bunny prosecuted in order to clear up the “grey areas” of the law.
The Copyright Act
For many years the Australian Copyright Act was held up as an example of world’s best practice: written to be media neutral to avoid frequent revisions as technology progressed. Recent changes have introduced narrow, technology specific definitions that exclude live streaming TV content, and a general failure to cope with the new internet-connected world. It is clear that this legislation requires a major clean-up.
Let’s watch the Olympics, not lawyers.
But should we be considering enforcement of copyright at all? Shouldn’t we be asking our regulators and legislators to enforce better coverage and more choice for the people of Australia?
We have done it before: the anti-siphoning legislation is a clear attempt to keep certain sport coverage available on free to air television.
While some have turned to Foxtel, should the many who don’t want or can’t afford Pay TV be forced to risk breaking laws to watch what they want to watch – especially when it is available for free to people in the UK?
Channel Nine is reported to have paid A$120 million for the exclusive rights to bring the games to Australians.
Sadly, buying the rights to broadcast the Olympic games carries no responsibility to broadcast the Games well, or at all. Doing a bad job of it doesn’t reduce the rights of Channel Nine, the BBC or the IOC in maximising their profits and enforcing their copyrights.
So, when you are watching the Olympics tonight, whether via Channel Nine, Foxtel, or streamed from the BBC, stay tuned for the next episode in The Copyright Wars. Rights owners will move to strengthen protection through changes to Australian law that enshrine geoblocking. Civil society advocates can and should resist those changes in the public interest.
The IOC and its broadcast partners need to pull their heads out of the clouds and embrace global transparency.