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Singapore – Multiple One-to-One Communications = Communication to the Public?

29 November, 2013

 

Legal News & Analysis – Asia Pacific – Singapore – TMT

 

In the seminal case of RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd [2011] 1 SLR 830 (“RecordTV“), the Court of Appeal found a provider of an Internet DVR (“iDVR“) service, which allowed registered users to request the recording of MediaCorp’s free-to-air broadcasts in Singapore, not liable for copyright infringement.


In Singapore, copyright in broadcasts and cinematograph films may be infringed by making a copy of the broadcast or film, or by communicating the same to the public, without permission from the copyright owner.


The Court of Appeal found that it was the user who copied the MediaCorp shows and communicated the same to himself. This was on the ground that it was the user who operated the iDVR to request for the shows to be recorded, and who determined the content of the communication by making the recordings. The Court of Appeal also found that there was no communication ‘to the public’ because each registered user communicated the shows he had recorded to himself privately and individually.


The recent English High Court / European Court of Justice (ECJ) decisions in ITV Broadcasting Ltd v TV Catchup Ltd (“ITV“) appear to depart from RecordTV in finding that there was no communication ‘to the public’. However, on closer inspection, it can be seen that there is no departure and the decision in RecordTV remains correct in light of the Court of Appeal’s findings on the identity of the communicator (who is also the maker of the copy).


In ITV, the plaintiffs broadcasting companies owned the copyright in certain TV broadcasts and films. The defendant, TVC, operated an Internet-based service for the live streaming of free-to-air TV programmes. A TV channel is streamed to a registered user only when the user makes a request for that channel. Importantly, a separate stream is created for each requesting user, as opposed to the same stream being sent to multiple users. The question was whether this made a difference to the question of whether there was a communication ‘to the public’.


The judge expressed the provisional view that it did not make a difference that a separate stream is created for each user because “the aggregate of the individual communications which TVC makes at any given time is properly to be regarded as a communication to the public “. However, as the law was unsettled, the judge referred the question to the ECJ.


The ECJ agreed with the judge that there was no difference. The ECJ held that in determining whether there was communication ‘to the public’, “the cumulative effect of making the works available to potential recipients” should be taken into account, and it is “irrelevant whether the potential recipients access the communicated works through a one-to-one connection“. 


Following from the ECJ’s decision, the English High Court on 7 October 2013 ordered TVC to remove the offending channels from its streaming service and to pay legal costs to the plaintiffs.


The decision in ITV, on its face, appears to depart from RecordTV. However, there is arguably no departure when it is considered that in RecordTV, the users were found to be the communicators. This was on the basis that they had determined the content of the communication by making the recordings. Since each communication was made by a different person, it would arguably make little sense to consider the individual communications in aggregate as the ECJ has done. It was proper to do so in ITV only because the communications in that case were all made by ITV. The user did not have to record a show to have it streamed to him.


In conclusion, the decisions in ITV and RecordTV must be understood in the context of the findings in each case as regards the identity of the communicator. The principle that an aggregate of one-to-one communications amounts to communication ‘to the public’ must arguably be restricted to a case where it is the service provider who is the communicator.

 

ATMD Bird & Bird

 

For further information, please contact:


Oh Pin-Ping, ATMD Bird & Bird
[email protected]

 

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