BROADCAST INFRINGEMENTS:BROADCAST INFRINGEMENTS:CASE STUDIESCASE STUDIES

Information Meeting on Information Meeting on Developments in BroadcastingDevelopments in Broadcasting

WIPO, Geneva, May 25, 2009WIPO, Geneva, May 25, 2009

Fernand AlbertoFernand AlbertoBroadcast Media Consultant Broadcast Media Consultant

Manila, PhilippinesManila, Philippines

Cost of Piracy (Asia) Cost of Piracy (Asia)

Source: CASBAA and Standard Chartered Bank

US$ million

At least US$213 million is being lost annually to regional government coffers

Losses comprise:–Corporate profits tax: US$ 163 million–VAT/GST:US$ 50 million

Cost of Piracy Cost of Piracy

ACTUAL CASESACTUAL CASES

Philippines

Plaintiff : FTA broadcasterDefendant : DTH pay satellite service operatorClaim : Unauthorized “rebroadcasting”

ISSUE Is the satellite broadcaster a “broadcasting organization” engaged in “rebroadcasting”?

ABS-CBN Broadcasting Corp vs. Philippine Multi-Media System, Inc. (Supreme Court, Philippines, January 2009)

Rome Convention:

“rebroadcasting “ is the ‘simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization’

ABS-CBN Broadcasting Corp vs. Philippine Multi-Media System, Inc. (Supreme Court, Philippines, January 2009)

Is Defendant a “broadcasting organization”?8th SCCR working document: “broadcasting organizations” are “entities that take the

financial and editorial responsibility for the selection and arrangement of, and investment in, the transmitted content.”

But. . .?

“transmission by satellite is also ‘broadcasting’ where the means for decrypting are provided to the public by the broadcasting organization or with its consent”

ABS-CBN Broadcasting Corp vs. Philippine Multi-Media System, Inc. (Supreme Court, Philippines, January 2009)

8th SCCR working document: “broadcasting organizations” are “entities that take the financial and editorial responsibility for the selection and arrangement of, and investment in, the transmitted content.”

HELD: No “rebroadcasting”. Defendant’s satellite broadcast service “functions essentially as a cable television”

ABS-CBN Broadcasting Corp vs. Philippine Multi-Media System, Inc. (Supreme Court, Philippines, January 2009)

Basis of decision: 8th SCCR working document:“The Rome Convention does not grant rights against unauthorized cable retransmission. Without such a right, cable operators can retransmit both domestic and foreign over-the- air broadcasts simultaneously to their subscribers without permission from the broadcasting organizations and without obligation to pay remuneration”

Copyright law exception: “The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use”

HELD: Must-carry rule is a copyright exception

ABS-CBN Broadcasting Corp vs. Philippine Multi-Media System, Inc. (Supreme Court, Philippines, January 2009)

What about the fact that Plaintiff is also the copyright owner of the content?

ACTUAL CASESACTUAL CASES

Papua New Guinea

EMTV: Acquired exclusive rights (cable, FTA, satellite) in Papua New Guinea for the 2008 Olympic Games

A payTV satellite service provider in Papua New Guinea allegedly carried EMTV’s signals as well as certain Olympic programming produced by an FTA in Australia.

ACTUAL CASESACTUAL CASES

Japan

Plaintiff : FTA broadcastersDefendant : ISP

Karaoke Rule: A person who earns profits and substantially controls the use of copyright materials shall be deemed a user of those copyright materials when establishing copyright infringement.

HELD: No substantial control by ISP. Not liable

Japan Broadcasting Corporation (NHK) et al vs. KK Digital Kaden (IP High Court, January 2009)

ACTUAL CASESACTUAL CASES

Thailand

Plaintiff : Satellite broadcasterDefendant : Cable operatorClaim : Unauthorized redistribution

HELD : UBC had the broadcasting copyright on the program broadcast by it even though UBC was neither the creator nor a copyright owner of such contents

United Broadcasting Corp. vs.Muang Loei Cable Network Co (Supreme Court, Thailand, 19 February 2007)

ACTUAL CASESACTUAL CASES

China

Plaintiff : broadcasterDefendant : website

Government crackdown on unauthorized retransmissions (2008 Olympic Games):

453 online infringement cases 192 sites shut down173 sites required to remove infringing content 88 sites received administrative punishment10 sites under criminal prosecution

CCTV vs. Xunlei.com

ACTUAL CASESACTUAL CASES

Hong Kong, SAR

Plaintiff : US and Canadian satellite broadcastersDefendant : web server

Defendant claims that “publishing” takes place in North America (where plaintiff’s programs are shown) , not in Hong Kong.

HELD: mere availability of the software on the websites, amounts to publishing in Hong Kong and constitutes an infringement of broadcasters’ rights as copyright owners.

Dish Network LLC and others v Zentek International Co. Ltd (October 16, 2008)

ACTUAL CASESACTUAL CASES

2008 Summer Olympic Games

Exclusive broadcast rights holders in:

MongoliaIndonesia

DevelopmentsDevelopments

20th Asia-Pacific Economic Cooperation (APEC) Ministerial Meeting (November 2008)

APEC Ministers adopted a joint statement:

agreeing to “continue work to address satellite and cable signal theft in the region”

reaffirming the importance of ongoing international discussions

THANK YOUTHANK YOU

fernand.nyc@gmail.com