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