Case Note
| Citation | (2011) 23 SAcLJ 653 |
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
WHERE COPYRIGHT LAW AND TECHNOLOGY ONCE AGAIN CROSS PATHS
The Continuing Saga
RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd
This article critically analyses the issues and reasoning behind the recent Singapore Court of Appeal decision in RecordTV Pte Ltd v Mediacorp TV Singapore Pte Ltd on the legality of digital copying and communications technology under Singapore‘s copyright law and offers a different perspective (and some alternative arguments) on the three issues of copying, communication to the public and authorisation of copyright infringement. In particular, we will identify the relevant party to these acts and examine their definitions, based on the current statutory provisions and the history of the development of copyright law vis-…-vis modern technology.
I. Introduction and facts
1 The High Court decision of Justice Andrew Ang in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd1 has already been examined elsewhere.2 Pursuant to RecordTV‘s appeal, this article sets out to
critically analyse the recent judgment of the Court of Appeal, which was delivered on 1 December 2010 by V K Rajah JA.3
2 The facts, briefly, are as follows. RecordTV, the plaintiff, ran an internet business which provided complimentary recording services to members of the public who had pre-registered with them on their website. Subscribers of this online service were able to request for free-to-air television (“TV”) programmes from, inter alia, Channel 5, Channel 8 and Channel NewsAsia (channels pre-determined by RecordTV) to be recorded for their later viewing. MediaCorp (the defendant) was the owner of copyright in these TV broadcasts and films (collectively, the “relevant MediaCorp shows”).
3 This was how the RecordTV system worked. Once a request was received from a registered user (“RU”), RecordTV‘s internet-based digital video recorder (“iDVR”) - at its remote location - would identify the relevant programme and make a copy of it at the time of its broadcast. The recorded programme would then be stored on RecordTV‘s online servers for a period of 15 days, during which time the RU can log on to the plaintiff ‘s website, gain access to the requested recording and view it at his leisure. After 15 days, the recorded programme would be deleted.
4 MediaCorp subsequently sent RecordTV cease-and-desist letters for copyright infringement, whereupon the latter initiated proceedings against the former - pursuant to s 200(1) of the Copyright Act4 - for groundless threats of copyright infringement. In defence, MediaCorp pleaded that RecordTV had indeed infringed their copyright in the relevant MediaCorp shows. Although Ang J had ruled in favour of MediaCorp at trial, the appeal by RecordTV succeeded before the Court of Appeal (“CA”) and Ang J‘s decision was, accordingly, overturned. Three main issues arose for consideration before the CA:
(a) whether RecordTV copied the relevant MediaCorp shows;
(b) whether RecordTV communicated the relevant MediaCorp shows to the public;
(c) whether RecordTV authorised its RUs to do in Singapore any act comprised in MediaCorp‘s copyright in the relevant MediaCorp shows.
We shall now examine these issues in turn.
II. The first issue: Did RecordTV copy the MediaCorp shows?
5 In relation to the first issue, the CA agreed with the decision of the trial judge and held that it was the RUs, and not RecordTV, who had copied the relevant MediaCorp shows through their request for the recording of these shows by the iDVR system.
6 Both Ang J and the CA relied heavily on the authority of The Cartoon Network LP, LLLP v CSC Holdings, Inc5 (“Cartoon Network”), a decision of the US Court of Appeals for the Second Circuit. The Second Circuit decided, inter alia, that it was the customers of Cablevision (the defendant) - and not Cablevision itself - who had made the unauthorised copies in question using Cablevision‘s remotestorage digital video recording (“RS-DVR”) service (which is, for our purposes, the equivalent of RecordTV‘s iDVR system). The US appellate court arrived at this conclusion by relying on the analogy between the users of Cablevision‘s RS-DVR system and those of the “ancient” video cassette recorder (“VCR”), ie, because the user/operator of the VCR (and not its manufacturer) supplies the necessary element of volition in the recording process (of making copies of TV programmes for later viewing), so it must be the case also for the user of the RS-DVR/iDVR system (which automatically makes copies upon the request/command of the user). In either case, the main volitional agent who engages in copying, so it was found, is the user himself and not the provider of the recording technology. Putting it another way, the Second Circuit concluded that the bulk of the relevant volitional conduct, “an important element of direct liability”,6 lay with the users of the RS-DVR service (ie, Cablevision‘s customers).
7 The authors are, respectfully, of the view that the CA (as well as Ang J at trial) should not have relied on the Cartoon Network decision. The analogy between the users of Cablevision‘s RS-DVR system and those of the “ancient” VCR - the lynchpin upon which the US decision was based - is incongruous and therefore ought to be rejected.7
8 As regards the extent of volition on the part of the provider of the recording technology (viz, the element of control over recordable content), it is the authors‘ view that, in comparison, the provider of a
video-on-demand (“VOD”) service exerts the most control, since such a provider actively selects and makes available beforehand the specific programmes available for viewing. This is followed by the provider of a RS-DVR/iDVR service who pre-determines and makes available to the user the specific channels of programming but not the specific programmes available for recording.8 Only further down the line is the provider of a self-service photocopying facility or the manufacturer of the VCR, whose users can, practically speaking, choose to make copies of or record any sort of content whatsoever in their respective formats. There are, therefore, subtle (but extant) gradations in the extent of control that is exercised over recordable content insofar as each of these providers is concerned, and it seems inaccurate to assert that service providers like Cablevision and RecordTV “more closely resemble” the provider of a self-service photocopying facility or the manufacturer of the VCR.9
9 It is further submitted that there are palpable differences in the modus operandi of the VCR/photocopier on the one hand and the RSDVR/iDVR system on the other which clearly serve to distinguish the extent of volition on the part of the end-users of the new technology.
10 Someone who uses the photocopying machine to make copies of copyright material has the power and ability to terminate the reproduction process at any time. Likewise, the user of the VCR can stop the recording of free-to-air TV programmes at any stage. It is unclear if a RU of the iDVR system is also able to terminate the process of making a digital copy of a MediaCorp programme once his instructions have been received by RecordTV, particularly so after the programme and, consequently, the digital recording process have begun.
11 Another difference is that a person using the VCR has to personally perform all the necessary steps for the recording of a particular MediaCorp programme - ie, all volitional conduct necessary for a VCR recording emanates entirely from the user himself.10 The manufacturer of the VCR, on the other hand, engages in no volitional conduct at all, save for having merely made available the facility for
recording. In this regard, the element of control is completely ceded from the manufacturer/vendor of the VCR to the consumer once the product is purchased by the latter. There is, therefore, no “continuing relationship” between the manufacturer/vendor and consumer post sale (save for the collateral contract of guarantee, if any). In contrast, where RecordTV‘s iDVR is concerned, a RU is merely empowered to make an online request - to indicate his choice of which MediaCorp show(s) he would like RecordTV to record on his behalf.11 Beyond this initial standalone phase which no doubt triggers the follow-on recording mechanism, the RU does not participate in nor interfere with the online recording process in any way whatsoever. RecordTV will then execute, albeit automatically, all the remaining steps necessary for the recording and reproduction of the relevant MediaCorp programmes - from first displaying television scheduling information, to its software identifying the relevant programmes to be recorded, to the actual making of digital copies, to the storage of these copies on its servers, and to making these programmes available (for a period of 15 days and via streaming technology) to its customers for viewing.
12 Thus, it is apparent that RecordTV retains a considerable degree (indeed, the bulk) of control and volition - “an important element of direct liability”12 - in the overall running of its iDVR service and that the viability of RecordTV‘s operations depends very much on a “continuing relationship” between RecordTV and all its RUs.13 As such, RecordTV can hardly qualify as a mere “passive conduit” for the (so-called “automatic”) delivery of copyrighted content to its RUs - quite the contrary, it was an active participant in the entire process of recording, hosting and delivery.
13 The Second Circuit‘s analogy between the VCR (a physical device whose manufacturer/vendor is volitionally dissociated and
completely cut off from the recording process post sale) and the RS-DVR/iDVR system (an online service whose provider is constantly and actively engaged in the recording process and, as will be explained later, who indeed determines the outcome of that process) is therefore flawed.14 Even though the iDVR system, like the VCR...
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