An internet start up launched its online service RECORDTV in July 2007, allowing Singaporeans for the first time to record free-to-air TV shows aired by Mediacorp, Singapore’s only broadcasting company, over the Internet. Founders Carlos Fernandes and Varsha Jagdale bought out an American company which had pioneered the service in the late 1990s. Using this service, users can log onto the website and record TV shows from Channel NewsAsia, Channel 5 and Channel 8, among other MediaCorp properties. The programmes can be stored in an online database for up to 15 days which can then be watched on a computer or other device connected to the Internet, like a mobile phone. This service, which is free, does not however let people download pay-TV programmes, such as those on cable.

MediaCorp threatened to sue the Singapore-based company, claiming the device flouts copyright rules. But RecordTV launched a pre-emptive strike, and is suing national broadcaster MediaCorp for millions of dollars claiming in its Statement of Claim that MediaCorp’s groundless threats had cost the firm about $30.5 million in revenue and research grants. It is asking the court to stop MediaCorp from making any further threats, and is seeking damages.

It is not clear how widespread the practice is here, but many of these free to air popular shows are already available on file-sharing networks like BitTorrent and video-sharing site YouTube.

Currently, besides Youtube and VeohTV, Singaporeans can also use DVD players to record shows for themselves, but MediaCorp says the online recordings go beyond that.

The company alleged that it found 53 shows last July, originally broadcast on channels like Channel NewsAsia, Channel 5 and Channel U, on the RecordTV website. These included Money Mind, Singapore Tonight and CSI Miami III. The digitized copies are usually stored online for about 15 days. MediaCorp claimed that was tantamount to making illegal copies.

From this issue, several interesting IP questions can be raised and should be addressed by the courts.

First of all, do the free-to-air TV shows enjoy copyright? Then if they do enjoy copyright, what sort of right is it? Are there any defenses against such misuse of rights?

Usually, only the copyright owner shall have the right of reproduction. This principle is enshrined in Article 1(4) of the WIPO Copyright Treaty. The Treaty further states ‘It is understood that the storage of a protected work in digital form in an electronic medium constitutes a form of reproduction within the meaning of Article 9 of the Berne Convention.’

Also under Section 17 of the Singapore Copyright Act, references in the Act to the reproduction of any work or of any adaptation of a work in a material form, include references to the storage of that work or adaptation on any other medium from which the work or adaptation, or a substantial part of the work or adaptation, can be directly reproduced. Relying on this, RecordTV could be seen to have infringed Mediacorp’s rights by illegally reproducing its shows.

On top of that, Article 8 of the WIPO Copyright Treaty states that copyright owners shall enjoy the exclusive right to communicate the works to the public by wire or wireless means, including the making available to the public works in such a way that members of the public may access them from a place and time individually chosen by them. Under Section 7 of the Singapore Copyright Act, it is stated that “communication” means the transmittal by electronic means provided by a material substance or by wireless means. Communication may be of a work or other subject-matter, whether or not it is sent in response to a request, and includes the broadcasting of a work and the making available of a work or other subject-matter (on a network or otherwise) in such a way that the work or subject-matter may be accessed by any person from a place and at a time chosen by him. Thus it looks as if RecordTV has its work cut out for it.

So the man in the street may ask whether there are possible defences against such infringement. By considering some international cases, one may infer what approach the Singapore Courts may take.

In the United States, Google and Youtube have been saying that the US Digital Millennium Copyright Act’s (DMCA) Safe Harbour defences protect intermediaries and service providers such as them. The safe harbour defences limit the liability of service providers (e.g. Internet service providers) when users post or use copyrighted content. The question is whether RecordTV can be considered as a legitimate service provider.

If that fails, RecordTV could find solace in invoking defences in similar cases in the United States and Europe with regards to the concepts of time and space shifting. In those areas of jurisprudence, the general rule is that if the reproduction is for private use and for ends that are neither directly nor indirectly commercial on condition that the right holders receive fair compensation, the defences against infringement may be invoked. See RIAA v Diamond Multimedia (1999). However, these defences are generally end user oriented and intermediaries such as RecordTV may have to show the non-profit element in its business. Even if it could be held as a legitimate service provider and shown that it does not charge users a fee for using its service, it could still be held liable indirectly. In the Australian case Universal Music Australia v Sharman Licence Holdings Ltd [2005] FCA 1242, it was held that Sharman benefitted from the online activities even though no fee was charged to users, through advertisement and traffic revenues.

The stand-off appears headed towards an eventual High Court ruling that could have implications for users who use the Web to record and watch TV programmes. We expect the case to go to a full trial towards the end of the year. The trial could lay down an important landmark precedent that could redefine how Singaporeans record live television.