27 January 2016

Australians have access to a number of on-demand video services, such as Presto, Stan and Netflix, and these are changing the way we consume video entertainment.

Netflix in particular has a global reach, and you may not know that your "Australian" Netflix account is really a global account, and the content you see varies, depending on what country you're in when you log in.

Netflix will happily let you use your account all over the world, but if some content has not been licensed for a particular country, then you won't even see it in search results while you're in that country.

It's all about maximising investment in creating content, which is obviously usually a sensible idea. If you pump capital into something, you're usually doing it to get a commercial return.

Here's an example; Miss Fisher's Murder Mysteries, made in Australia, funded by the ABC, Film Victoria, Screen Australia and AII3Media International, and shown on the ABC. But here's the issue: Seasons 1, 2 and 3 are available on Netflix in the USA, but only seasons 1 & 2 are available on Netflix in Australia.

Why? Because Netflix hasn't been able to obtain the geographic rights to make season 3 available in Australia. Why is that? I don't really know, but I imagine it is because the rights owners such as the ABC wants to exploit season 3 further in Australia, before licensing it more cheaply to Netflix for Australian viewers. The ABC probably doesn't see any particular value in trying to exploit the USA rights itself, and has let Netflix and possibly others do that instead.

As you can see, Netflix doesn't make these decisions - the owners of the rights decide where Netflix can exploit the content. The contract between Netflix and a content owner will no doubt have a clause in it requiring Netflix to use best efforts to prevent content being watched in unlicensed countries.

Some customers of Netflix are aware of these geographic restrictions, and use services such as Getflix to convince the Netflix servers that they are in another country.  A Getflix customer can (at least for the time being) be in Australia but appear to be in any of about 20 countries. It also works in reverse, so you could be in Vietnam (where you can't watch Netflix at all) but appear to be in Australia.

Is this geo-dodging legal? It's probably not a breach of the Australian Copyright Act 1968, because simply watching a streamed video at home is not one of the rights controlled by copyright law here. Copyright is more about copying, reproducing, performing publicly and adapting works. The Act does deal with broadcasting and unauthorised decoding of subscription broadcasts, but Netflix isn't a broadcaster within the technical meaning of that term.

So it might not be a breach of legislation to do this, but it is most definitely a breach of your contract with Netflix. Clause 4.3 says:

4.3.   You may view a movie or TV show through the Netflix service primarily within the country in which you have established your account and only in geographic locations where we offer our service and have licensed such movie or TV show. The content that may be available to watch will vary by geographic location and will change from time to time. The number of devices on which you may simultaneously watch depends on your chosen subscription plan and is specified on the "Your Account" page.

You should note though that using, say, Getflix is not the problem - the problem is watching something that is not licensed in your geographic location.

If Netflix catches you breaching the contract, it is entitled to give you notice of the breach, and its intention to terminate the contract if you don't remedy the breach by stopping watching videos you shouldn't be watching.

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