Time to better define the rules of the content game

A big decision down-under with the Federal Court ruling that Optus mobile could record and then transmit TV services to their customers. Seems innocuous enough, but, Optus hadn't paid for the rights to the sports content that it was transmitting.

The operator that held most of the rights (Telstra) has appealed the decision with strong support from the sports' administrative bodies. The lobbying process has also begun in earnest and it appears the Government is minded to alter the legislation to extinguish Optus' claim.

This initially raises a question around the role of Government and whether it is appropriate for it to be changing the rules retrospectively - it could be argued that Optus’ product was innovative competition. However the bigger issue is perhaps whether it is reasonable to tie up content with a single provider?

Parallels can be drawn between Optus TV and ongoing hearing in the EU over the viewing of sport on alternate feeds. In the later case a British publican was alleged to be circumventing Sky's control over EPL broadcasting rights by utilising a Greek satellite feed to televise live football. The European Court of Justice is now testing whether it is appropriate for rights holders such as the Premier League to legally license their content on a country-by-country basis.

In both disputes it is clearly important that Government (and the Courts) play a role by protecting property rights. At the same time there is an equity issue at play around whether it is reasonable (or efficient) for content to be allocated to single providers.

In the world of wireless spectrum Governments realise that there needs to be a balance amongst the outcomes and benefits (public/private). Whilst trying to extract every last drop of value from spectrum auctions they also ensure that there are limits to the total amount of bandwidth that can be held by an operator.

In the digital age maybe it's about time that broadcasting regulations were similarly thought through.