Television Broadcasts Ltd and Others v Golden Line Video & Marketing Pte Ltd

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 14 November 1988
• Neutral Citation: [1988] SGHC 87
• Docket Number: Suit No 309 of 1988 (Summons in Chambers No 1600 of 1988)
• Date: 14 November 1988
• Year: 1988
• Published date: 19 September 2003
• Plaintiff Counsel: Keh Kee Guan and Fok Jun Heng (Keh Kee Guan & Co)
• Citation: [1988] SGHC 87
• Defendant Counsel: Tan Tee Jim (Donaldson & Burkinshaw)
• Court: High Court (Singapore)
• Subject Matter: Copyright,Video tapes not pirated copies,Whether defendants infringed plaintiffs' copyright by renting video tapes to the public without licence of plaintiffs,Rental of video tapes without licence from copyright owner,Whether statement of claim discloses reasonable cause of action,Application to strike out statement of claim,Right of distribution,Infringement,O 18 r19 Rules of the Supreme Court 1970,ss 7, 83, 103(1), 103 (2) & 105 Copyright Act (Cap 63)

Cur Adv Vult

This is an application by the defendants, inter alia, to strike out the statement of claim under O 18 r 19 of the Rules of the Supreme Court and/or under the inherent jurisdiction of the court on the ground that the statement of claim discloses no reasonable cause of action against the defendants.

This application was filed on 14 March 1988. Since then, ie on 2 September 1988, the plaintiffs have, pursuant to an order of court, filed an amended statement of claim. Accordingly, the application has been heard before me on the basis that it was an application to strike out the amended statement of claim.

It was agreed by counsel for the parties herein that should the defendants fail in this application, judgment would accordingly be entered against them in terms of the reliefs prayed for in the amended statement of claim but that should the defendants succeed, all other interlocutory applications made in this action should be dealt with accordingly.

For the purpose of this application, the parties have agreed to the following statement of agreed facts which reads:

(1) The first plaintiffs are a public limited company incorporated under the laws of Hong Kong with a registered office at No 1, Hysan Avenue, 3rd Floor, Causeway Bay, Hong Kong. They are the copyright owners of the cinematograph films (hereinafter referred to as `the said films`) identified in the schedule (the said schedule) attached to the amended statement of claim filed herein. Copyright in the said films subsists in Singapore.

(2) The second plaintiffs are a company incorporated in Hong Kong with a registered office at No 1, Hysan Avenue, 3rd Floor, Causeway Bay, Hong Kong. They are the exclusive agents and licensees of the first plaintiffs for the granting of licences in respect of the said films for territories outside Hong Kong by virtue of an agreement dated 1 June 1981 entered between the first and the second plaintiffs.

(3) The third plaintiffs are a company incorporated in Singapore with a registered office on the 1st Floor, Mandarin Theatre, 535, Kallang Bahru, Singapore 1233. They were at all material times the exclusive licensees of the said films for the territory of Singapore by virtue of an agreement dated 16 February 1987 (hereinafter referred to as `the said agreement`) entered into between the second and the third plaintiffs for the period 1 April 1987 and 31 March 1988.

(4) Under the said agreement, the third plaintiffs had the exclusive right to:

(a) produce duplicates of the said films on video recording tapes;

(b) exhibit and authorize the exhibition of the said films on video recording tape re-play machines by way of private let or hire for home use;

(c) grant sub-licences to others, and

(d) grant duplication licences to others with the consent of the second plaintiffs.

(5) The third plaintiffs had at the date of this action about 190 sub-licensees who were granted sub-licences to let out on hire copies of the said films to members of the public for private and domestic homeviewing. The sub-licensees were prohibited from reproducing or selling copies of the said films and were to ensure that copies rented out were not in turn re-hired out to third parties. The plaintiffs have not authorized any copies of the said films for sale in the open market.

(6) The first publication of the said films took place in Singapore. Copyright in the said films therefore subsists in Singapore and the first plaintiffs were and are at all material times the owners of the copyright so subsisting in the said films.

(7) Each copy of the said films released in Singapore as aforesaid has been censored and has attached thereto a video-tape certificate issued by the Board of Film Censors which bears the name of the third plaintiffs (or their predecessors, Visionex) as owners and a notice on the casing stating as follows:

Notice

This video cassette tape has been specifically licensed to be let on hire for private and domestic homeviewing by an authorized sub-licensee of the sole and exclusive licensee - Crown Video (S) Pte Ltd. The letting out on hire or rental of this video cassette tape by any person other than an authorized sub-licensee constitutes an infringement of the rights of Crown Video (S) Pte Ltd and the copyright owners, Television Broadcasts Ltd (TVB).

(8) All copies of the said films contain the following warning notice on playback:

The film contained in this video cassette is distributed under licence from the copyright owners for private home use only. Any other use of such film or any part of it including but not limited to copying it, causing it to be seen or heard in public, broadcasting or carrying it to be transmitted to subscribers in a diffusion service, selling, hiring or otherwise dealing with it or any part of it without the written authority of the copyright owner is strictly prohibited.

(9) The defendants, who were at all material times not one of the sub-licensees of the third plaintiffs or of Visionex, let for hire copies of the following films: (a) The Turbulent Decade, (b) The New Heaven Sword and Dragon Sabre, (c) SIB File (here follows another 33 titles).

(10) All copies of the said films were made by and/or with the consent of the plaintiffs. Each of these copies has a Board of Film Censors certificate bearing the third plaintiffs` or Visionex`s name as owners thereof.

(11) Four hundred and thirty five copies of the said films referred to in para 10 above were obtained by the defendants from Rising Video Pte Ltd (Rising), now of Blk 634, Veerasamy Road, #01-140, Singapore 0820. These copies were in turn obtained by Rising from the third plaintiffs and Visionex. Rising was a sub-licensee of the third plaintiffs from April 1987 to March 1988. The hiring out by the defendants of the copies of the said films as set out in para 9 above was made without authorization or consent of Rising.

In the course of arguments before me, counsel for the plaintiffs confirmed that the expression `all copies` in para 10 of the statement of agreed facts meant the 1,090 video tapes and that all such tapes were made in Singapore by the third plaintiffs as sub-licensees of the second plaintiffs.

I have also recorded in my notes of arguments a statement by counsel for the plaintiffs that counsel for the defendants conceded that the defendants had allowed the video tapes to be shown in public for advertising and preview purposes, but I have no record of any admission or denial of this statement by counsel for the defendants.

This action was commenced on 12 February 1988 when the writ indorsed with a statement of claim was filed. On the same day, the plaintiffs applied for and obtained an interim injunction in the following terms:

That the defendants, whether by themselves, the directors, officers, servants or agents or any of them or otherwise howsoever be restrained and an injunction be granted restraining them until further order from making, manufacturing, reproducing, selling or offering for sale or letting for hire, or by way of trade, offering or exposing for hire or sale or otherwise parting with possession, power or custody or control of or destroying or defacing or hiding or removing any copies or any substantial copies (whether in the form of video cassette tapes or otherwise) of the cinematograph films listed in the schedule hereto and of all other cinematograph films not listed in the schedule hereto and in which copyright subsists in Singapore and belong to the first plaintiffs herein.

The plaintiffs also obtained an Anton Piller order and an order for delivery of all infringing video tapes containing the cinematograph films to the plaintiffs within 24 hours. The Anton Piller order was executed on 15 March 1988 pursuant to which the 1,090 video tapes were seized into the custody of the plaintiffs` solicitors. The ex parte application for the injunction and the Anton Piller order was supported by an affidavit affirmed on 11 February 1988 by the general manager of the third...