Depends on the market

5.22 Some stakeholders also said it was important to consider whether the rights holders offer a comparable service. If a rights holder has already created a scheme through which consumers can view programming at a later time, for example, then personal or third-party time-shifting should not be allowed. The ABC submitted that:

Where the cloud service is being offered in competition with the true rights holder, then it is important to consider what legal access to the content is already available to the public. If the content is already accessible on demand by way of a catch-up service by a legitimate rights holder, then the competing cloud service should not be able to offer that content.^[17]

5.23 Taking this argument further, some might ask whether exceptions for time-shifting free to air broadcasts are now fair at all, when the programs can be watched at a later time through online catch-up services. ARIA noted that Australia’s time-shifting exception had its origins in ‘an era of analogue broadcasts where programming and time constraints meant that the opportunities to catch up on a missed broadcast program were limited’.^[18]

5.24 However few would now say that all unlicensed copying of broadcast material for time-shifting should be prohibited. Consumers very much expect to be able to make these copies. Further, some argue that exceptions to allow the making of private and domestic copies encourage the development of innovative and efficient services and consumer products.^[19]