Is viewing television content sourced from another country copyright infringement? A recent interim injunction decision from the High Court looks at the copyright issues that arise with cross-border reception of television broadcasts and internet streaming. In this case, a New Zealand company tried to circumvent a New Zealand licensee of Korean broadcasters by obtaining the broadcasts directly in Korea and sending the broadcasts, via the Internet, to New Zealand customers' TVs.
The recent interim injunction decision from the High Court in Munhwa Broadcasting Corporation and Others v Young International 2009 Limited and Another raised a number of interesting questions surrounding the cross-border reception of television broadcasts. Put simply, the defendants obtained licences for television content in Korea (at a significantly cheaper price than what was offered in New Zealand) and then used the Internet to send this content to its customers' TVs in New Zealand.
The first three plaintiffs are foreign broadcasters in Korea and Hong Kong, while the fourth plaintiff, World TV, is a New Zealand company that broadcasts content received from the foreign broadcasters under licence. World TV rents channels from Sky Television to re-broadcast the foreign content in New Zealand to its subscribers. The plaintiffs sought to restrain the defendants from broadcasting the foreign content in New Zealand as the plaintiffs claimed that this infringed the plaintiffs' copyright in the material.
Encoding and Decoding Copyright
Many similar cases in the European Union have previously focussed on the use of 'pirate decoder cards' that decode encrypted broadcasts from a legitimate supplier. However, in this case, the defendants, Young International 2009 Limited and its two directors (Young), had a relatively ingenious plan, hoping to skirt the issue of copyright infringement. It signed up all of its customers with legitimate subscriptions to the plaintiffs' services in Korea. Young then ran those subscriptions into a warehouse located in Korea and sent the live feeds, via Internet, to set top boxes provided to its customers in New Zealand. The "Baro TV" system that the defendants used digitised the data of the original broadcasts, then encoded and compressed it to enable the data to be sent to New Zealand via the Internet. The data was then decompressed by the customers' decoder. This allowed Young's New Zealand customers to view the broadcasts in real time, but without the need to purchase a SKY decoder or pay a licence fee to World TV.
The Plaintiffs relied on their rights under the Copyright Act 1994 and claimed that the defendants had copied the broadcasts with the digitising process that converted the broadcasts from analogue to digital, and that the retention of the broadcasts in the customers' decoder box and the reproduction of the broadcasts infringed copyright.
In its defence, Young argued that, by broadcasting their content in Korea, the plaintiffs had given Young permission to view the content in New Zealand. The Court did not agree, stating that the licences were clear (that the broadcast was for Korea only) and therefore entitled to be restricted by territory. In fact, in the modern world, it is also common for Internet streaming licences to be limited by country. Young also ran an alternative argument, which relied on an exception in the Act, that the retention and reproduction of the data was transient or incidental as the decoder box did not store the content, and therefore it did not constitute copying. Again, the Court rejected this argument and found that the exception in the Copyright Act only applies where the reproduction is for non-infringing use or for lawful dealing in the work, which was not the case here.
Although the Court did not rule on the substantive copyright issues, it found that there was a serious question to be tried in relation to copyright infringement. The Court accepted the plaintiffs' submissions that the plaintiffs' broadcasts had been copied.
Interestingly, when assessing whether Young had communicated the work to the public under section 16(f) of the Copyright Act, the Court accepted that one-to-one communications of a work, in this case from Young's Baro TV system to its individual customer, were "to the public". The Court interpreted this phrase as not meaning the whole public or a large group of people, but rather the right could be infringed by a communication to a single person from the public, such as any subscriber to the Baro TV service.
The Court issued an interim injunction in favour of the plaintiff, preventing Young from continuing to broadcast the plaintiffs' content in New Zealand, finding that there was a serious question to be tried in relation to the copyright issues.
In a world where borders are rapidly shrinking and the rise of the Internet makes it increasingly easy to access content from other countries, this decision reiterates that rights, and restricted and permitted acts, relating to copyright works are territorial. Accessing content over the Internet that is readily available on websites originating in other countries may see you infringing New Zealand copyright.