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Where Copyright Law and Technology Once Again Cross Paths – RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd [2010] 2 SLR 152
This article examines Justice Andrew Ang’s decision in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd [2010] 2 SLR 152, whose decision was recently overturned by the Singapore Court of Appeal. This article was written prior to the release of the appellate court’s judgment.
The video cassette recorder (“VCR”) is a familiar, if somewhat obsolete, product of technology in the household. Consider then, the availability of a more sophisticated and technologically advanced system of recording, which operates remotely and digitally on the internet, in contrast to the VCR, which operates locally and via analog means. What impact would these forms of technology have on the enforceability and reach of the laws of copyright? How should copyright owners in the digital age respond to the diverse landscape of computer technology which is, of course, evolving at an exponential rate? These were the sorts of questions which the Singapore High Court had to grapple with in the recent dispute between our national broadcaster, MediaCorp, and the owner of RecordTV, an internet-based recording service.
The decision of Justice Andrew Ang in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd (“Record TV”)1 is significant because to this author’s knowledge, this is the first reported decision in Singapore to have considered, in some detail, the relatively new “right of communication to the public” enshrined in the Copyright Act 1987 (the “Act”).2 This exclusive right, which was introduced pursuant to Singapore’s obligations under the US - Singapore Free Trade Agreement and which came into force on 1 January 2005,3 is undoubtedly Parliament’s response to the latest developments in digital technology and meant to augment the level of protection accorded to copyright owners in the online environment.
Facts and Issues Arising
RecordTV, the plaintiff, owned and ran an internet business which provided complimentary recording services to members of the public who had pre-registered with them on their website. Subscribers of this online service were able to request for certain free-to-air TV programmes – the range of which, from channels such as Channel 5, Channel 8 and Channel NewsAsia, was pre-determined by RecordTV4 – to be recorded by the plaintiff for their later viewing. Unsurprisingly, MediaCorp (the defendant) were the owners of copyright in these TV broadcasts and films, the details of which can be ascertained from the judgment (at [2]).
This was how the RecordTV system worked. Once a request is received from a subscriber, RecordTV’s Internet DVR (“iDVR”) system – at its remote location – identifies the relevant programme and makes a copy of it at the time of its broadcast. Thereafter, the recorded programme is stored on RecordTV’s online servers for a period of 15 days, during which time the subscriber (end-user) can log on to the plaintiff’s website, gain access to the requested recording and view it at his leisure. After 15 days, the recorded programme is deleted by the plaintiff.
MediaCorp subsequently sent RecordTV cease and desist letters for copyright infringement, whereupon the latter initiated proceedings against the former for groundless threats of copyright infringement.5 In defence, MediaCorp pleaded that RecordTV had indeed infringed their copyright in the TV broadcasts and films in question. The matter then came before Justice Andrew Ang in the Singapore High Court, and his Honour crystallised the main legal issues arising from this dispute as:6
(a) Is the plaintiff liable for infringement of the defendants’ rights in making copies of the MediaCorp Broadcasts and Films?
(b) Is the plaintiff liable for communicating the MediaCorp Broadcasts and Films to the public?
(c) Can the plaintiff rely on any safe harbour or fair dealing provisions to escape liability?
Unveiling the Identity of the Primary Copyright Infringer
Is the plaintiff liable for infringement of the defendants’ rights in making copies of the MediaCorp broadcasts and films?
1. A critique of Cartoon Network
This first issue essentially seeks to unveil the identity of the copyright infringer. On the authority of Cartoon Network LP v CSC Holdings Inc (“Cartoon Network”) (a decision of the US Court of Appeals for the Second Circuit),7 Ang J answered this question in the negative and held that it was the respective end-users of RecordTV’s iDVR system – and not RecordTV itself – who had made the unauthorised copies/recordings in question and therefore breached MediaCorp’s exclusive right of reproduction. In reaching this conclusion, Ang J was highly persuaded by the analogy given and accepted in Cartoon Network between the end-users of these different types of technology – the remote-storage digital video recording (“RS-DVR”) service on the one hand (which is, for our purposes, the equivalent of RecordTV’s iDVR system), and the VCR on the other. The argument goes that because the end-user or operator of the VCR – and not its manufacturer – supplies the necessary element of volition in the recording process (of making copies of TV programmes for later viewing), so it must be the case also for the end-user of the iDVR system (which automatically makes copies upon the command/request of the end-user). In either case, the main volitional agent who engages in copying, so it is argued, is the end-user himself and not the provider of the recording technology.
The present author, however, disagrees and is of the view that RecordTV (and not its end-users) ought to have been held liable – as a primary copyright infringer – for having made those unauthorised copies/recordings in question. It is respectfully suggested that the analogy proffered by the US appellate Court8 between the VCR (and the provider of a self-service photocopying facility) on the one hand and RecordTV’s iDVR system (or the RS-DVR system) on the other is markedly inapt.
Firstly, it is trite that the manufacturer of the VCR has produced a device that is capable of substantial (or commercially significant) non-infringing uses (which, of course, is the well known “Sony-Betamax” defence considered by the US Supreme Court in Sony Corporation of America v Universal City Studios, Inc).9 For example, the VCR may be utilised by the end-user for playback purposes or, because of the need for time-shifting, to make his own (legitimate) recordings of free-to-air TV programmes. The iDVR system developed by RecordTV, on the other hand, can only be used (and was intended only to be used) for the sole purpose of making and storing unauthorised digital copies of MediaCorp’s copyrighted programmes.10
Similarly, the manufacturer of the photocopying machine or the provider of a self-service photocopying facility does not at all determine (nor has any control over) how the machine/facility is to be used. In this regard, the machine/facility itself is completely passive in nature – it is the end-user/customer who determines exactly the contents of what the machine is to photocopy (which can be both legitimate and illegitimate). In contrast, the iDVR system does not operate in an identical fashion. This is because RecordTV already pre-determines and makes available, through the various channels of programming, the range of recordable content for its customers. On this basis, RecordTV has defined the broad parameters of what its customers can choose to record specifically. RecordTV has also, in this regard, intentionally (even though knowledge is generally irrelevant given the strict liability nature of primary copyright infringement) offered to its customers a slew of copyright-protected works for recording purposes.11
It may further be observed that a customer who uses the photocopying machine to make copies of copyrighted material has the power and ability to terminate the reproduction process at any time. Likewise, a home user who is recording a free-to-air TV programme on the VCR can stop the recording at any stage. It is unclear, at least to this author, if the end-user of the iDVR system is also able to terminate the process of making a digital copy of a MediaCorp programme once his instructions have been received by RecordTV, particularly so, after the programme and consequently the digital recording process have begun.
Obviously, the mere request (or the mere making of a choice) by RecordTV’s customers for it to make digital copies of MediaCorp’s programmes does not, in itself, amount to infringing conduct (short of the operation of vicarious liability or the law of agency)12 – simply because no copies have yet been made. The actual making of such copies by RecordTV’s iDVR system, however, does. In this sense (and herein lies the critical difference), a customer of RecordTV is, unlike the domestic operator of the VCR (or the user of the photocopying machine), one step further removed from the (physical) act of infringement itself. To understand why this is so, let us examine more closely the extent of engagement in volitional conduct on the part of each of these parties.
Under the iDVR system, all that a registered end-user has to do is to simply make a request online. RecordTV then directly executes, albeit automatically,13 all the remaining steps necessary for the recording of the relevant MediaCorp programmes – from first displaying television scheduling information (arising from RecordTV’s initial pre-selection of MediaCorp channels available for recording by end-users),14 to its software identifying the relevant programmes to be recorded, to the actual making of digital copies, to the storage of these copies on its servers, and to making these programmes available (for a period of 15 days and via streaming technology) to its customers for viewing. Arguably, RecordTV engages in considerably more volitional conduct (or the bulk of the volitional conduct) under the iDVR system than its customers. In contrast, a domestic operator of the VCR, of his own accord, has to do everything necessary for the recording of a particular free-to-air TV programme – the manufacturer of the VCR does nothing at all, save for having merely made available, the facility for recording.15 The user has to physically/manually operate the device by triggering the “record” function on the VCR, which then automatically obeys the command and begins the recording process. Even if the user does not manually record a programme in real time but has to make a “request” through the VCR, he must still manually input all the necessary instructions and programme the VCR to start recording automatically at the desired time. It is clear that all volitional conduct necessary for a VCR recording emanates entirely from the domestic user whereas the VCR itself (or its manufacturer), quite obviously, engages in no volitional conduct at all.16 Further, it is also obvious that after the recording process is complete, the user of the VCR will have on hand a personal (“local”) and permanent copy of the recorded programme and is at liberty to make additional copies for subsequent distribution to other third parties, quite unlike the end-users of the iDVR system.17 Therefore, even though the iDVR system, like the VCR, operates automatically at the behest of the end-user,18 it is apparent that significant differences do exist between these two forms of recording technology and that such differences will result in different legal consequences.
For all the foregoing reasons, it is respectfully submitted that RecordTV – and not its end-users – ought to assume personal responsibility for the direct infringement of MediaCorp’s copyrights. It has been argued above that because RecordTV still retains a considerable degree of volitional control in the recording process under the iDVR system, RecordTV ought to be treated as the actual “maker” of the unauthorised copies of MediaCorp’s programmes. As Ang J puts it, “[t]he plaintiff is in the business of operating a website that makes copies of copyrighted material”.19
Incidentally, the Second Circuit in Cartoon Network had also found that in determining who actually “makes” a copy, a significant difference exists between making a request to a “human employee” who volitionally makes that copy (in which case, the “human employee” is presumably deemed the main volitional agent) and issuing a command directly to a computer system which automatically obeys commands.20 Query, though, whether such a distinction is sound – that volitional conduct can somehow be “assigned” or attributed from an intervening human agent to his principal (ie, the person who issued the request/command) simply by automating the copying process? This aspect of the US appellate Court’s decision is also, with respect, somewhat flawed. In any event, if the word “employee” is to assume its traditional, legal meaning, then whenever a request/command is made by the principal (“employer”) to a “human employee”, the principal (“employer”) ought to be held vicariously liable for the volitional acts of his employee, even if the employee is ultimately deemed to be the party who had made the copies in question. Indeed, the soundness of this particular proposition in Cartoon Network was severely doubted – and rightly so – by Ang J himself.21
2. A critique of Ang J’s reasoning
As mentioned, Ang J was inclined to accept the analogy proffered in Cartoon Network between the end-user of the VCR and the end-user of the RS-DVR (or iDVR) system – that the main volitional agent in the copying process in either case is the end-user himself.22 This line of reasoning, however, is all the more difficult to follow given that Ang J had already accepted that it was
“… difficult for [RecordTV] to escape direct liability for permitting its automaton “employees” … to make unauthorised copies of the MediaCorp Broadcasts and Films”.23 If RecordTV were unable to escape liability for direct infringement on the basis that its recording computers and other equipment (its “automaton employees”) had made the unauthorised reproductions in question, then it must follow that RecordTV, in providing this online recording service, is the main volitional agent, not its end-users. In any event, it has been argued above (in the critique of Cartoon Network) that the analogy between the VCR and the RS-DVR system is clearly inappropriate – there are significant differences in the modus operandi of these two forms of technology.
Ang J further sought to justify the similarities between these two recording systems by focusing on the end result of the copying process – the end-user simply obtains a time-shifted recording.24 Therefore, according to his Honour,
“[i]f the end-user is the maker of this time-shifted recording for the purposes of the VCR, it must remain that the end-user is the maker of the recording in the context of the DVR, remote or local”.254 But why should it follow – short of the operation of the doctrine of vicarious liability or the law of agency – that just because the end product in either case is the same (a time-shifted recording), the end-user, and not the technology provider, must be deemed the “maker” of the recording? Indeed, whilst the end result may be the same in either case, the legal repercussions are distinctly different if “… the process is carried out remotely and digitally, as opposed to locally via analog means”.26
It has been argued above that where the recording process is executed locally via analog means (eg, through the medium of the VCR), the main volitional agent is the domestic end-user who is personally and solely responsible for making the VCR recording. Under such circumstances, it is trite that the end-user can avail himself of the well-known defence of time-shifting in copyright law (a point to which we will return below). On the other hand, where the recording process is executed remotely and digitally by the RS-DVR system, it is submitted once again that prime volitional control still resides with the provider of the RS-DVR system, and not its end-users. As such, the provider of the RS-DVR system (which is essentially a business set-up) cannot, under the received wisdom, raise the time-shifting or fair dealing defence against a claim for primary copyright infringement.
It is, therefore, difficult to comprehend why, according to Ang J, “Holding (1) [or, more accurately, Holding (a)] of the Cartoon Network decision … is difficult to refute”.27 This author also respectfully disagrees with his Honour’s decision that RecordTV was, ultimately, not liable for primary copyright infringement insofar as the making of the unauthorised copies of MediaCorp’s programmes is concerned. However, even if we were to accept this aspect of Ang J’s decision as correct, can it not be argued, in passing, that RecordTV had nevertheless infringed upon MediaCorp’s exclusive right of reproduction (ie, the right to make copies), since RecordTV had stored/hosted these recorded copies on its online servers for a period of 15 days (which act would certainly fall within the meaning of “on any medium by electronic means” found in s 17(b) of the Act)? It would, in my opinion, be far too contrived to argue that the main volitional agent in the online storage process ought also to be attributed to the end-users of the iDVR system. Indeed, even Ang J acknowledged the ludicrousness of this proposition – in the context of whether the hosting of recorded copies of MediaCorp’s programmes on RecordTV’s servers amounted to an act of the end-user in “including” such copies “in a cable programme” within the meaning of s 114(3)(b) of the Act – in these remarks:
In my view, the statute surely could not have been intended for the punishment of an end-user demographic that copyright owners themselves would have had no business or inclination pursuing.28
It is a pity, therefore, that this issue of web-hosting by RecordTV (and its implications for direct copyright liability arising from a breach of the exclusive right of reproduction) was not at all canvassed before his Honour.
Is the plaintiff liable for communicating the MediaCorp broadcasts and films to the public?
Ang J answered this second question in the affirmative and found in favour of MediaCorp, whose right to communicate the array of TV broadcasts and films to the public is enshrined in ss 84(1)(d) and 83(c) of the Act, respectively. In arriving at the conclusion that RecordTV had infringed upon MediaCorp’s exclusive right of communication to the public,29 his Honour reasoned that: (i) RecordTV, through its iDVR system, had transmitted by electronic means (much like the act of “broadcasting”) the relevant MediaCorp programmes to the end-user(s) in question; and (ii) RecordTV, “by facilitating the placement of recorded material on its website”, had “included the subject-matter of the MediaCorp Broadcasts and Films in a ‘cable programme’”.30 Whilst the result reached by Ang J on this particular issue is eminently correct, the present author would rather adopt (and respectfully suggest) an alternative analysis altogether.
In relation to (i) which was described by Ang J as “not seriously disputed”,31 this author is of the view that RecordTV’s iDVR system, when properly analysed and especially in its “First Phase” of operations (see [6]–[9]),32 shares the same functionality and characteristics as “pull” technologies – where the transmission of a copyright work is said to be recipient-initiated, ie, involving a passive communicator on the one hand with multiple active recipients on the other. Hence, it is not entirely accurate to say that RecordTV had actively and directly transmitted/emitted the MediaCorp programmes in question to its end-users by electronic means, unlike the service rendered by providers of “push” technologies (involving active communicators and passive recipients), such as broadcasters (eg, MediaCorp) and cable-casters (eg, StarHub). More appropriately, and as shall be argued below, RecordTV should be deemed to have “made available” the relevant MediaCorp programmes to its end-users through the iDVR system.33
As to (ii), Ang J had decided, earlier in the judgment,34 that even though the end-users of the iDVR system were deemed to be the “makers” of the unauthorised copies of MediaCorp’s programmes, these end-users had certainly not “included” them “in a cable programme”. Why then should it follow that “by facilitating the placement of recorded material on its website”, RecordTV must be taken to have “included the subject-matter of the MediaCorp Broadcasts and Films in a ‘cable programme’”? As Ang J himself acknowledged, there are numerous problems of interpretation with this approach.35 It seems preferable – not to mention much less convoluted and far less controversial – not to characterise RecordTV’s conduct of hosting
MediaCorp programmes on its website as an instance of “including” these offending works “in a cable programme”.36 This interpretation was, no doubt, initially desirable to “plug a loophole”.37 However, since the Copyright Act 1987 now expressly provides for a right of “making available” (which is subsumed within the broader right of communication to the public)38 and since the loopholes in the copyright law have been “timeously plugged” by Parliament,39 it would seem more appropriate, given the arguments which are to follow, to characterise RecordTV’s conduct as falling within this new exclusive right of “making available” – the rationale for which is to help regulate and control the dissemination of copyrighted material on the internet.40
There are, it is submitted, legitimate reasons why RecordTV ought to be held liable for “making available” the MediaCorp broadcasts and films, thereby infringing MediaCorp’s right of communication to the public. The word “communicate” is clearly defined in
s 7(1) of the Act to include 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”. In other words, the broad umbrella provision which sets out the exclusive right of communication to the public also includes, in addition to the conventional rights of broadcasting and cable-casting, a distinct right of “making available” to the public.41
In this regard, RecordTV is no different from an internet pirate (or a P2P file-sharer) who provides hyperlinks/access to unauthorised music and movie files on the internet. Or, as Ang J himself framed the question, “… whether the RecordTV system may be properly analogised to the YouTube business model”.42 It is submitted that the iDVR system likewise “makes available”, through the various channels of programming, the contents of what the end-user can choose to record.43 And after the recording and online storage processes are over,44 the end-user in question can, of his own volition, visit RecordTV’s website (within a given period of 15 days, but otherwise at any time and from any place) and obtain access to the programme(s) recorded. It may, therefore, be argued that RecordTV would have “made available” MediaCorp broadcasts and films on its online servers (or on its internet website) in such a way that these programmes may be accessed by any end-user45 who has requested them from a place and at a time chosen by the end-user, within a given period of 15 days. Accordingly, RecordTV would have been in breach of MediaCorp’s exclusive right of communication to the public.
Availability of the Safe Harbour and Fair Dealing Provisions to Escape Liability
With regard to this third legal issue, Ang J held, rightly in my view, that no defence was available to RecordTV under the statute – neither the safe harbour provisions for network service providers (in ss 193A and 193B) nor the generic fair dealing provisions (in s 109).46 As to the latter, only RecordTV’s customers were entitled to rely on the fair dealing defence for the purpose of time-shifting47 and it was impermissible for RecordTV “… to rely on its customers’ fair dealing to exculpate its own culpable behaviour”.48
Whether or not time-shifting falls within the scope of the fair dealing defence in Singapore remains to be tested before our Courts, although, given the recognition by American case law that time-shifting qualifies as “fair use” under US copyright law,49 it is not unarguable that it does. Nevertheless, time-shifting is clearly a “personal” defence meant to exculpa49te the behaviour of domestic users of recording technology like the VCR (whose behaviour is entirely private and non-commercial in nature). The defence, however, cannot be relied upon by a third party service provider (such as RecordTV) to perform the infringing act and engage in volitional infringing conduct on behalf of the end-user/customer, particularly where the service rendered by the third party does not satisfy the factors which are relevant to the inquiry as to whether the dealing was fair.50 Insofar as RecordTV was concerned, the fair dealing defence proved elusive simply because it was essentially a commercial outfit that “was certainly not run as a charity”.51 Instead, it was a “preliminary foray into the market for advertisement-driven web-based programme recording”52 and its business model appeared to have “come down much more heavily on the side of commercial exploitation than public service”.53
Relevance of Contributory/Indirect Infringement or Infringing Authorisation
Ang J also had the opportunity to consider whether RecordTV might be liable to MediaCorp for contributory/indirect infringement or, in copyright parlance, infringing “authorisation”.54 His Honour decided, rather controversially in my view, that RecordTV was indeed so liable.
In argument,55 MediaCorp alleged that RecordTV had authorised the infringement of its copyrights in the various broadcasts and films – the base infringement, presumably, having been committed by RecordTV’s customers (ie, the end-users who were found by Ang J to have been the “makers” of the unauthorised copies/recordings). However, as Ang J himself rightly pointed out, “… the concept of authorising infringement is premised on there being an existing act of primary infringement”.56 The task, therefore, is to first identify whether there is “an existing act of primary infringement”. Logically, the underlying act of infringement must have been committed by RecordTV’s customers, since his Honour had already decided that RecordTV was not at all liable for direct infringement of MediaCorp’s copyrights.57 In what respect then can it be said that the end-users of the iDVR system had committed acts of primary copyright infringement?58
First, Ang J had decided that the end-users of the iDVR system could avail themselves of the private and domestic use defence found in s 114(1) of the Act, since it could not fairly be said – applying an interpretation which accords with “common sense” – that these end-users, in making the unauthorised copies of MediaCorp’s programmes, had also “included” them “in a cable programme” (thereby triggering the operation of s114(3)(b), which is an exception to the s 114(1) defence).59 For this reason, no copyright liability would attach to these end-users.
Second, apart from the s 114(1) defence and even if we were to accept Ang J’s conclusion that the end-users of the iDVR system were indeed the actual “makers” of the unauthorised copies of MediaCorp’s programmes, these individual end-users can surely rely on the well-known defence of time-shifting (which, as mentioned, is arguably encapsulated in s 109 of the Act) to justify their actions and escape copyright liability.60
With respect, therefore, it does seem rather odd for Ang J – after having pointed out that “… the concept of authorising infringement is premised on there being an existing act of primary infringement”61
– to hold RecordTV “liable for authorising the making of copies [of MediaCorp’s programmes] by its customers”,62 when it is abundantly clear, for the reasons given above, that these individual customers are themselves completely absolved of all copyright liability.
Conclusion
The RecordTV case is yet another addition to the already long list of technology cases63 which constantly seek to test, and often attempt to push the boundaries of copyright law. Whilst we do not deny the benefits of allowing and promoting the development of new technology, the law must, at the same time, strive to achieve a fair compromise between this and the need to respect and reward the creative endeavours of copyright owners. It is unfortunate that the iDVR technology provided by RecordTV found itself on the wrong side of the copyright balance.
In the instant case, RecordTV had established an internet business that was premised on the provision of a recording service which was convenient and free of charge to its customers. From this author’s reading of the facts, it is probable that RecordTV had tried to engineer its online recording service around the well-known practice of time-shifting – a practice which is eminently acceptable from the perspective of RecordTV’s customers (which practice has been repeatedly endorsed, both by legislation and by the Courts in many jurisdictions, as falling within the scope of the fair dealing/use defence), but not so for RecordTV itself, a fact which it may not have fully appreciated.64
Whilst the end-users themselves can legitimately take advantage of the time-shifting practice, RecordTV cannot, on these facts, make copies of MediaCorp programmes on their behalf through the provision of the iDVR service. As Ang J himself cautioned, “[w]ere this not the case, an avaricious entrepreneur could make copies of copyrighted material for its customers with impunity for its own financial profit …”.65 And, indeed, his Honour was convinced that RecordTV’s business was set up “primarily for private profiteering”; it was clearly “a commercial project with the eventual goal of monetisation through advertisements and the licensing of advertising technology”.66
Finally, it is a pity that the present judgment was a missed opportunity for Ang J to have clarified and then applied the new right of communication to the public (in particular, the distinct right of “making available”) to hold RecordTV liable for hosting copyright-infringing material on its internet website. Instead, his Honour decided to pin copyright liability on RecordTV by relying, inter alia, on the breach of an existing (if controversial) exclusive right – that of “including”, without licence, the copyright work in question “in a cable programme”. Hopefully, our Courts will have the opportunity to re-examine the right of “making available” in the near future.
Saw Cheng Lim
Associate Professor of Law
School of Law
Singapore Management University
•Notes
1 [2010] 2 SLR 152. [return]
2 See for example, ss 26(1), 83(c), 84(1)(d) and 85(1)(d) of the Copyright Act 1987 (Cap 63, 2006 Rev Ed) (the “Act”).[return]
3 See the Copyright (Amendment) Act 2004 (Act 52 of 2004).[return]
4 See [7].[return]
5 Pursuant to s 200(1) of the Act.[return]
6 See [17].[return]
7 536 F 3d 121 (2nd Cir. 2008). It is noteworthy that the Second Circuit in the instant case had actually overturned the decision of the lower (district) Court, which had arrived at the opposite conclusion.[return]
8 See Cartoon Network LP v CSC Holdings Inc 536 F 3d 121 at 131-132 (2nd Cir. 2008).[return]
9 464 US 417 at 442 (1984).[return]
10 As Ang J himself observed (at [44]): “Finally, and most importantly, the ‘instrumentality’ of the plaintiff’s iDVR consists solely of recording the defendants’ copyrighted films and broadcasts. By this token, the plaintiff’s device appears to fail, quite dismally, the inquiry for ‘commercially significant non-infringing uses’, viz, the test applied by the court in Sony […] to decide whether imposing contributory liability is just.” (Emphasis in original).[return]
11 Per Ang J (ibid.): “Next, while the plaintiff could not control the exact programmes being shown on the various channels it could record, it did choose to provide recording functionality to channels that were all subsumed under the defendants’ various copyrights.” (Emphasis in original).[return]
12 Neither of which is applicable nor proven on these facts.[return]
13 Cf., however, Ang J’s remarks at [94]: “Further, the plaintiff also has to justify how the pre-selection by the plaintiff and the subsequent selection by the end-user are classifiable as being part of an ‘automatic technical process’. To my mind, the manner in which the relevant recordings were eventually chosen and transmitted in the course of the operation of the Offending Website was anything but ‘automatic’. Indeed, a great amount of volition must surely have gone into the very human choices of what and which programmes to record.”[return]
14 Per Ang J (at [93]): “It is not disputed that the plaintiff pre-selected the MediaCorp channels for the purposes of recording – indeed, the plaintiff was at pains to state that it specifically chose, for the purposes of the RecordTV system, free-to-air channels that would have the least likelihood of running afoul of any copyright laws.”[return]
15 See CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] 1 AC 1013; Ong Seow Pheng v Lotus Development Corp [1997] 2 SLR(R) 113.
[return]
16 This is also true insofar as a user of a photocopying machine is concerned.[return]
17 Per Ang J (at [98]): “The average lay person is, therefore, unable to extract recorded programmes from the … RecordTV DVRs for further downstream transmission … given that no permanent copies are actually ‘downloaded’ to the end-user’s computer and that subsequent distribution of the recorded programmes is beyond the ken of all but the most determined and technically gifted.”
[return]
18 But see note 13, above.[return]
19 At [91].[return]
29 See [22] and [23].[return]
21 See [26]–[31].[return]
22 See [32].[return]
23 See [31] (emphasis added). Ang J, relying on the authority of Sony Music Entertainment (UK) Ltd v EasyInternetCafe Ltd [2003] FSR 48, had also expressed the view that
“[a]utomation ought not to and does not change anything where, at bottom, the process of copying is initiated via voluntary human agency.” (at [30]; emphasis in original).[return]
24 See [32] and [33].[return]
25 At [33] (emphasis in original). See also [99].[return]
26 At [32] (emphasis in original). Ang J, however, disagrees: “There is no need whatsoever to distinguish between the minutiae of whether a DVR operates locally or remotely, whether DVR technology is being implemented as a product or a service, or whether recording is done digitally or via analog means …” (at [117]; emphasis in original).[return]
27 At [32].[return]
28 At [54]. See also, more generally, [53]-[56].[return]
29 At [85]. Ang J had, uncontroversially in my view, also decided that the communication of the MediaCorp broadcasts and films was indeed made “to the public” and that it was RecordTV (and not its end users) who was responsible for the said communication: see [76]–[84].[return]
30 At [74].[return]
31 Ibid.[return]
32 Per Ang J (at [9]): “Since its inception, the RecordTV system has undergone three different phases of operation. When RecordTV launched in July 2007, only one recording was made despite multiple end- users’ requests for a programme to be recorded (the “First Phase”). This functionality was termed the Single Instance Storage Mode (“SIS Mode”) and it eliminated the duplication of copies by allowing multiple end users to share from one copy of a recording.” (Emphasis in original).[return]
33 See for further discussion and analysis, CL Saw and SHS Leong, “Criminalising Primary Copyright Infringement in Singapore: Who are the Real Online Culprits?” (2007) European Intellectual Property Review 108; CL Saw and WTH Koh, “Does P2P have a Future? Perspectives from Singapore” (2005) 13 International Journal of Law and Information Technology 413.[return]
34 See [53]–[56].[return]
35 See, generally, [46]–[58]. See also George Wei, The Law of Copyright in Singapore (2nd edition, SNP Editions, 2000), pp 1284-1288. The controversy, in essence, revolves around the question as to whether the operator of a website (in contrast to a provider of a cable programme service) can technically be said to have “sent” or “transmitted” the copyright material in question to its end-users, or whether, in actual fact, the end-users themselves are merely “accessing” and “retrieving” the material posted on the website without any active sending by the operator of the website.[return]
36 As Ang J rightly cautions (at [57]): “… we would do well to be aware that not every piece of copyrighted material on the Internet falls to be classified as having been ‘included in a cable programme’”.[return]
37 See [50] and [54].[return]
38 Per Professor S Jayakumar during the Second Reading for the Copyright (Amendment) Bill (Singapore Parliamentary Debates, Official Reports ((16 November 2004), vol 78 at col 1043): “This new communication right encompasses both the existing broadcasting and cable programme rights, and also the right to control the dissemination of works on the Internet.” (Emphasis added).[return]
39 At [58].[return]
40 Ang J appears to have accepted this in [58] and [71], but unfortunately failed to offer this very interpretation in his judgment (see in particular, [75]). At [58], for example, his Honour rightly pointed out that the new right of communication, as drafted, presents a “clear trichotomy”, and that “… this trichotomy is sensible and should not have its individual components needlessly conflated …”.[return]
41 See ss 83(c) and 84(1)(d), read with s 7(1), of the Act.[return]
42 At [72].[return]
43 See note 11, above.[return]
44 Notably, the recorded MediaCorp broadcasts and films are stored on RecordTV’s servers and deleted by RecordTV 15 days after the date of recording (see [8]).[return]
45 Hence, by any member of the “public” who has registered or who, with an internet connection, may choose to register with RecordTV – as endorsed by Ang J at [77].[return]
46 See generally, [86]–[110].[return]
47 See [95]–[100].[return]
48 At [101].[return]
49 See Sony Corporation of America v Universal City Studios, Inc 464 US 417 (1984) – the “Sony-Betamax” decision of the US Supreme Court.[return]
50 See the factors in s 109(3) of the Act, as well as [103]–[109]. This, with respect, probably explains the fallacy in Ang J’s reasoning at [99]. The VCR technology, in allowing the domestic user to personally and directly make copies for later viewing, does not interfere with the “personal” and non-commercial nature of the time-shifting (fair dealing) defence, unlike the iDVR system which takes the element of volition almost completely out of the hands of the end-user and into RecordTV’s. True, “[i]f time-shifting is fair use, then it is fair use, period” (at [99]). Indeed, it is time-shifting and fair use, but from whose perspective?[return]
51 At [103].[return]
52 Ibid.[return]
53 At [104].[return]
54 See s 103(1) of the Act: “Subject to the provisions of this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Singapore, or authorises the doing in Singapore of, any act comprised in the copyright” (Emphasis added). For a good overview of the law in this area, see Ang J’s analysis in [37]–[41].[return]
55 See [37].[return]
56 At [45].[return]
57 See [34].[return]
58 Per Ang J (at [45]): “While we have already accepted that the end-user is the maker of the copies in question, this does not necessarily mean that the end-user is guilty of infringement.” (Emphasis in original).[return]
59 See generally, [45]–[57].[return]
60 It appears that Ang J also agrees with this view: see [95]–[100].[return]
61 At [45].[return]
62 See [68] and [110].[return]
63 Just to name two – the “Sony-Betamax” decision (see note 49, above), and Metro-Goldwyn-Mayer Studios, Inc v Grokster Ltd 545 US 913 (2005) (which is a decision of the US Supreme Court involving a distributor of P2P file-sharing technology).[return]
64 Per Ang J (at [101]): “It is, of course, not permissible for a service provider to rely on its customers’ fair dealing to exculpate its own culpable behaviour.”[return]
65 At [102].[return]
66 At [109]. [return]