RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 01 December 2010
• Neutral Citation: [2010] SGCA 43
• Plaintiff Counsel: Alban Kang Choon Hwee, Koh Chia Ling and Ang Kai Hsiang (ATMD Bird & Bird LLP)
• Docket Number: Civil Appeal No 6 of 2010
• Date: 01 December 2010
• Hearing Date: 18 May 2010
• Subject Matter: Infringement,Words and Phrases,Copyright,Groundless threat
• Year: 2010
• Citation: [2010] SGCA 43
• Defendant Counsel: Davinder Singh SC, Dedar Singh Gill, Paul Teo Kwan Soon and Roe Yun Song (Drew & Napier LLC)
• Court: Court of Appeal (Singapore)
• Published date: 06 December 2010

V K Rajah JA (delivering the judgment of the court): Introduction

This is an appeal by the appellant, RecordTV Pte Ltd (“RecordTV”), against the decision of a High Court judge (“the Judge”), who dismissed its claim against the respondents, MediaCorp TV Singapore Pte Ltd, MediaCorp TV12 Singapore Pte Ltd, MediaCorp News Pte Ltd and MediaCorp Studios Pte Ltd (collectively referred to as “MediaCorp”), for making groundless threats to bring legal proceedings for copyright infringement. The Judge also held, vis-à-vis MediaCorp’s counterclaim against RecordTV for copyright infringement, that RecordTV was liable in its use of an Internet-based digital video recorder (“iDVR”) to record shows broadcast by MediaCorp.

This appeal raises an important policy issue as to how the courts should interpret copyright legislation in the light of technological advances which have clear legitimate and beneficial uses for the public, but which may be circumscribed or stymied by expansive claims of existing copyright owners. Bearing in mind that the law strives to encourage both creativity and innovation for the common good, in a case such as the present one, how should the courts strike a just and fair balance between the interests of all affected stakeholders, viz, consumers, content providers as well as technology and service vendors? If the law is not clear as to whether the use of improved technology which is beneficial to society constitutes a breach of copyright, should the courts interpret legislative provisions to favour the private rights of the copyright owner or the public’s wider interests? This is the problem that we face and have to resolve in the present case. In the normal course of events, when enacting a statute, the Legislature balances the rights and interests of all affected stakeholders after considering the social costs and the economic implications. Where the statute is not clear, however, the courts have to perform this difficult task. In the present case, the Judge struck the balance in favour of MediaCorp, the copyright owner, by giving an expansive interpretation to the relevant provisions of the Copyright Act (Cap 63, 2006 Rev Ed). His detailed reasons can be found in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2010] 2 SLR 152 (“the Judgment”).

The facts Parties to the dispute

RecordTV was the owner of an Internet-based service that allowed its registered users (referred to hereafter as either “Registered Users” or a “Registered User”, as the context requires) to request the recording of MediaCorp’s free-to-air broadcasts in Singapore. The broadcasts were recorded on RecordTV’s iDVR, which functioned just like a traditional digital video recorder (“DVR”), viz, a Registered User could select a programme to record, play back and/or delete. The main difference between RecordTV’s iDVR and a traditional DVR was that the former was a remote-storage DVR. This meant that the recording was made at RecordTV’s premises, with the Registered Users operating the iDVR system remotely from home or elsewhere via a web browser.

MediaCorp is a state-owned group of commercial media companies in Singapore. It is the nation’s largest media broadcaster and provider, and broadcasts a variety of free-to-air television programmes in Singapore. For present purposes, MediaCorp is also the copyright owner of the various free-to-air broadcasts and films particularised below (referred to hereafter as either the “MediaCorp shows” or a “MediaCorp show”, as the context requires), whose copyright RecordTV is alleged to have infringed:

Broadcaster	Channel
First respondent	Channel 5, Channel 8 and Channel U
Second respondent	Central and Suria
Third respondent	Channel NewsAsia

Copyright owner(s) of film	Film
First and fourth respondents	My Sassy Neighbour III
	Live the Dream
	Dear, Dear Son-in-Law
	Say It If You Dare III
Third respondent	Amazing Asia
	Correspondent’s Diary

RecordTV’s iDVR service – a time-shifting service

RecordTV’s iDVR service operated as follows. Members of the public had to first register with RecordTV (ie, they had to become Registered Users) before they could use its iDVR free-of-charge. Access to the iDVR was restricted to those Registered Users who were legally entitled to view and record the MediaCorp shows, all of which (as just mentioned) were broadcast on a free-to-air basis (see cl 3A of RecordTV’s terms of use (“the Terms of Use”),¹ which is discussed in greater detail at [49] below). These Registered Users were, in the main, Registered Users based in Singapore who held valid television licences. In this regard, it should be noted that all members of the public in Singapore who hold valid television licences are in effect licensed by MediaCorp to view the MediaCorp shows as the Media Development Authority (“MDA”) has granted a licence to MediaCorp to provide, inter alia, free-to-air broadcasts in Singapore, and this MDA-granted licence requires MediaCorp to provide shows to persons in Singapore who hold valid television licences without requiring the payment of any subscription fees in return. By virtue of s 114 of the Copyright Act, persons in Singapore who hold valid television licences can also make copies of the MediaCorp shows for their own “private and domestic” use.

Reverting to RecordTV’s iDVR service, upon a successful registration with RecordTV and a subsequent log-in using a unique username and password, a Registered User was able to access a database which listed the shows available for recording using RecordTV’s iDVR, namely, the MediaCorp shows scheduled for broadcast over the coming week on Channel 5, Channel 8 or Channel NewsAsia (this database was compiled by RecordTV using information from the public websites of the respective channels). The Registered User would select from this database the MediaCorp shows which he wanted to have recorded and enter the selected shows into a playlist. After making his selection, the Registered User would issue a request for RecordTV’s iDVR to record the desired shows. This request would be updated in the iDVR’s internal database. A control programme in RecordTV’s recording computers, which were located away from the Registered User’s computer, would continuously monitor the iDVR’s internal database to check whether a request had been made. If the control programme detected that a Registered User had made a request for a particular MediaCorp show to be recorded, it would instruct the iDVR to record the said show.

RecordTV operated several television tuners (one per television channel) from which its iDVR captured and recorded those MediaCorp shows which Registered Users had requested to be recorded. Depending on the mode of storage in which the iDVR operated (which could be the “Single Instance Storage” (“SIS”) mode, the “Mixed” mode or the “Multiple Copy” mode (see [9] below)), either one copy or multiple copies of the recording of a MediaCorp show would be stored in RecordTV’s recording computers. After the recording had been made, the Registered User who had requested for the recording would be able to play it back on his computer.

It is important to note that each recording of a MediaCorp show could only be retrieved by the Registered User who had requested that that particular show be recorded. This recording would be “streamed” to the Registered User, rather than “downloaded” onto his computer (as to the difference between “streaming” and “downloading”, see the Judgment at [97]–[98]; see also [62] below). The Registered User would then be able to view the recording until either RecordTV or the Registered User himself removed that recording from the latter’s playlist. It was the practice of RecordTV to delete all recordings of the MediaCorp shows from its recording computers 15 days after the date of recording (which would also be the date of broadcast of the respective shows). In effect, RecordTV provided a time-shifting service to the Registered Users by means of its iDVR, such that a Registered User could view, for a period of up to 15 days after the date of broadcast, a MediaCorp show recorded at his request.

RecordTV’s iDVR had three different phases of operation during its lifespan. When it was first launched in July 2007, it operated in the SIS mode. This mode of file storage involved the storage in RecordTV’s recording computers of one copy of the time-shifted recording of a MediaCorp show, regardless of the number of recording requests made for that show. By July 2008, RecordTV’s iDVR was operating in the “Mixed” mode for Channels 5 and 8, and in the “Multiple Copy” mode for Channel NewsAsia. The “Mixed” mode was a hybrid mode of storage whereby multiple copies of the recording of a MediaCorp show were created based on the number of Registered Users who had requested the recording of that show. If, however, system resources were insufficient, then only one copy of the recording would be made. As for the “Multiple Copy” mode, it involved the making and storage of multiple copies of the recording of the same MediaCorp show, such that that show could be played back from different files. Finally, sometime around August to September 2008, RecordTV’s iDVR was reconfigured to operate solely in the “Multiple Copy” mode for all channels. The one similarity among all three phases was that RecordTV would not make a recording of a MediaCorp show if it did not receive a recording request for that show. It should be noted that the third phase of operation of RecordTV’s iDVR (ie, the phase during which only the “Multiple Copy” mode of storage was used) was implemented only after RecordTV had commenced its action against MediaCorp.

Litigation between the parties

The dispute between RecordTV and MediaCorp crystallised when the latter issued cease-and-desist letters to...