7.54 The question of whether a use is fair can sometimes be avoided altogether by arguing that the material was not in fact used by the third party at all—that it was not the third party, but only the end user, who used the material. The threshold question will often be: who made the copy? In other cases, the question might be whether the material was communicated to the public.
7.55 These and related questions were considered in the Federal Court cases about the Optus TV Now service, noted above, and in the United States in Cartoon Network LP v CSC Holdingsand WNET, Thirteen, Fox Television Stations, Inc v Aereo, Inc, USCA.
7.56 A number of stakeholders expressed concern about the implications of the decision of the Full Federal Court in Optus TV Now. For example, the Internet Industry Association said it had ‘serious reservations regarding the finding that the provider of an online service can be the maker or the joint maker of a copy when the process of selecting the content and causing the technology to make the copy is undertaken entirely by the user’.
The traditional approach provided a ‘bright line’ that was easy to determine and, in our view, deliberately supported the creation of new and innovative products provided they did not have the sole purpose or function of facilitating the infringement of copyright.
7.57 However, how this question of who made the copy should be approached is largely outside the Terms of Reference. This Inquiry is about exceptions to copyright, rather than the threshold question of whether copyright has been exploited at all.
Singtel Optus v National Rugby League Investments (No 2)  34 FCA (1 February 2012); National Rugby League Investments Pty Ltd v Singtel Optus (2012) 201 FCR 147.
District Court, 2nd Circuit, 2008.
District Court, 2nd Circuit, 2013. See also ALRC Discussion Paper, Ch 5.
Internet Industry Association, Submission 744.
Ibid. See also eBay, Submission 751.