To state that technology has advanced rapidly in recent years, would be a gross understatement. Such has been the rate of technological development that even Moore’s Law seems to be outdated! However, on a more serious note, it has been a perpetual cat and mouse game between technology and the law. Fortunately or unfortunately, the law has lagged behind a fair bit, thereby leaving gaping holes in the legislation, ready to be exploited. The higher judiciary in Singapore, recently had the opportunity to test the proverbial ‘tensile strength’ of Copyright law in Singapore, and to measure how far legislation could be stretched, to accommodate technological advancement [in RecordTV Pte Ltd v. MediaCorp TV Singapore Pte Ltd (2010) SGCA 43]. More specifically, the Court of Appeal [‘CA’] subjected the Copyright legislation to a litmus test, to determine the impact that technological advance has had on the ‘pH’ of copyright infringement! While the law strives to encourage creativity and innovation, a fair balance ought to be struck between the rights of the copyright owner, the competitors and the interests of the consumers/ public at large. Has the judiciary managed to strike the right balance by dexterously demonstrating exceptional flexibility or has it wilted to adopting a straightjacket formula? The following paragraphs provide a glimpse of how it dealt with this herculean task.
FACTS OF THE CASE- IN A NUTSHELL
RecordTV Pte Ltd [‘Record TV’/ ‘the ‘Plaintiff’] owned an internet-based service, which permitted users to request the recording of free-to-air broadcasts, for subsequent viewing. MediaCorp TV Singapore Pte Ltd [‘MediaCorp’/ ‘the Defendant’] happened to be the copyright owner of the subject broadcasts/ subject works. Being aggrieved by the allegedly infringing activity by RecordTV, MediaCorp served a Cease & Desist Letter, attempting to prevent any further infringement. However, RecordTV refused to be bogged down by RecordTV’s attempt and instead commenced an action for groundless threats of copyright infringement. Further, it sought to take shelter under the fair dealing provisions of the Copyright Act.
DETERMINATION BY THE HIGH COURT
The High Court [‘HC’] adopted a three-pronged approach in analyzing the issues at hand (more fully described in the analysis of the decision of the Court of Appeal, below). In essence, the HC held that RecordTV had not infringed MediaCorp’s right to reproduce the shows, that RecordTV is guilty of authorizing infringement and that it cannot escape the bomb of ‘liability’ by taking shelter under the bunker of ‘fair dealing’. The HC consequently dismissed the claim for groundless threats. RecordTV [‘the Appellant’] being aggrieved by the decision of the HC, filed an appeal before the Court of Appeal [‘CA’].
DETERMINATION BY THE COURT OF APPEAL
The CA adopted the same three-pronged approach in determining whether RecordTV was guilty of infringing MediaCorp’s copyright over the works:
(a) Did RecordTV make copies or in other words reproduce the copyrighted work (i.e. the MediaCorp shows) thereby infringing copyright?
Hon’ble Justice V K Rajah JA, in his succinct analysis, while agreeing with the learned judge of the HC, held that RecordTV did not copy the works in question. Further, it was the registered users who requested the recording of the shows, who infringed the copyright in the works. The CA refused to buy into MediaCorp’s attempt to play down the analogy between the technology in question and the Video Cassette Recorder [‘VCR’].
(b) Did RecordTV communicate the works to the public
The CA opined that RecordTV did not communicate the works to the public, as the registered users could not be construed to be the ‘general public’ for the present purposes. The CA reasoned that the aggregate of private and individual communication made to each of the individual users, should not necessarily transform the nature of such communication into ‘public communication’. Further, unauthorized copies of the MediaCorp broadcasts are not being made and communicated to the public.
(c) Did RecordTV authorize the copying/ communication of the shows to the public
The CA began with the premise that the burden of proving that RecordTV had indeed authorized registered users to infringe MediaCorp’s copyright, fell on the copyright owner. In determining liability for authorizing infringement, the CA assessed, inter alia, four significant factors, namely the extent of control exercised by the alleged authorizer over the means of infringement, the nature of relationship between the authorizer and infringer, whether reasonable steps had been taken to prevent infringement and whether the authorizer has constructive knowledge of infringement. In the light of the factual matrix, the CA swayed in favour of holding that RecordTV did not authorize the registered users to infringe MediaCorp’s copyright.
Since RecordTV was not held liable for infringement, the issue of reliance on safe harbor provisions, proved to be a non-starter. However, more decisively, the CA held MediaCorp liable for issuing groundless threats against RecordTV.
The CA has in the instant case, adopted the stance that unless the terms employed in the statute expressly reflect the legislative policy, courts should avoid interpreting the statutory provisions in a manner, which would stifle technological development, development that is ultimately in the interest of the public. Thus, the Court of Appeal has managed to successfully tread the razor’s edge, by attempting to encourage technological development, as long as it is in the larger interest of the public.