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 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”?

Is Defendant a “broadcasting organization”? 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 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.”

Basis of decision: 8th SCCR working document: 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”

Copyright law exception: 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 Plaintiff : FTA broadcasters Defendant : ISP 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 Plaintiff : Satellite broadcaster 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

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