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) Source: CASBAA and Standard Chartered Bank US$ million

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 Cost of Piracy

ACTUAL CASES ACTUAL CASES Philippines 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 ABS-CBN Broadcasting Corp vs. Philippine Multi-Media System, Inc. (Supreme Court, Philippines, January 2009) Is Defendant a broadcasting organization? 8 th 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.

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 ABS-CBN Broadcasting Corp vs. Philippine Multi-Media System, Inc. (Supreme Court, Philippines, January 2009) 8 th 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.

HELD: No rebroadcasting. Defendants satellite broadcast service functions essentially as a cable television ABS-CBN Broadcasting Corp vs. Philippine Multi-Media System, Inc. (Supreme Court, Philippines, January 2009) Basis of decision: 8 th 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: 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 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?

ACTUAL CASES 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 EMTVs signals as well as certain Olympic programming produced by an FTA in Australia.

ACTUAL CASES ACTUAL CASES Japan 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 Japan Broadcasting Corporation (NHK) et al vs. KK Digital Kaden (IP High Court, January 2009)

ACTUAL CASES ACTUAL CASES Thailand 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 United Broadcasting Corp. vs.Muang Loei Cable Network Co (Supreme Court, Thailand, 19 February 2007)

ACTUAL CASES ACTUAL CASES China Plaintiff: broadcaster Defendant: website 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

ACTUAL CASES ACTUAL CASES Hong Kong, SAR Plaintiff: US and Canadian satellite broadcasters Defendant: web server Defendant claims that publishing takes place in North America (where plaintiffs 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. Dish Network LLC and others v Zentek International Co. Ltd (October 16, 2008)

ACTUAL CASES ACTUAL CASES 2008 Summer Olympic Games Exclusive broadcast rights holders in: Mongolia Indonesia

Developments Developments 20 th 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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