Transcript Doha – The place of dreams - Intellectual Property Watch

BROADCAST INFRINGEMENTS:
CASE STUDIES
Information Meeting on
Developments in Broadcasting
WIPO, Geneva, May 25, 2009
Fernand Alberto
Broadcast Media Consultant
Manila, Philippines
Cost of Piracy (Asia)
US$
million 1600
US$ 1.428 B
C
O
S
T
O
F
P
I
R
A
C
Y
1400
1200
US$ 1.132 B
US$ 1.05 B
1000
800
600
400
200
0
2005
2006
2007
Source: CASBAA and Standard Chartered Bank
Cost of Piracy
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
ACTUAL CASES
Philippines
ABS-CBN Broadcasting Corp vs. Philippine Multi-Media
System, Inc. (Supreme Court, Philippines, January 2009)
Plaintiff : FTA broadcaster
Defendant : DTH pay satellite service operator
Claim
: 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’
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.”
ABS-CBN Broadcasting Corp vs. Philippine Multi-Media
System, Inc. (Supreme Court, Philippines, January 2009)
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”
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.”
ABS-CBN Broadcasting Corp vs. Philippine Multi-Media
System, Inc. (Supreme Court, Philippines, January 2009)
HELD:
No “rebroadcasting”. Defendant’s
satellite broadcast service “functions
essentially as a cable television”
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”
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?
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
ACTUAL 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 CASES
Japan
Japan Broadcasting Corporation (NHK) et al vs. KK
Digital Kaden (IP High Court, January 2009)
Plaintiff : FTA broadcasters
Defendant : 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
ACTUAL CASES
Thailand
United Broadcasting Corp. vs.Muang Loei Cable
Network Co (Supreme Court, Thailand, 19 February
2007)
Plaintiff : Satellite broadcaster
Defendant : Cable operator
Claim
: 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
ACTUAL CASES
China
Government crackdown on unauthorized
retransmissions (2008 Olympic Games):
453 online infringement cases
192 sites shut down
173 sites required to remove infringing content
88 sites received administrative punishment
10 sites under criminal prosecution
CCTV vs. Xunlei.com
Plaintiff : broadcaster
Defendant : website
ACTUAL CASES
Hong Kong, SAR
Dish Network LLC and others v Zentek International Co.
Ltd (October 16, 2008)
Plaintiff : US and Canadian satellite broadcasters
Defendant : 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.
ACTUAL CASES
2008 Summer Olympic Games
Exclusive broadcast rights holders in:
Mongolia
Indonesia
Developments
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 YOU
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