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Appeals court hits RecordTV's play button

(SINGAPORE) A tale of David and Goliath was played out to its familiar conclusion yesterday.
Michelle Quah

Thu, Dec 02, 2010
The Business Times

(SINGAPORE) A tale of David and Goliath was played out to its familiar conclusion yesterday.

In a ruling, the Court of Appeal has decided in favour of Internet start-up RecordTV, which had been sued for copyright violations by national broadcaster MediaCorp for offering a service allowing viewers to watch the latter's programmes online.

The Court of Appeal, which is the final court of appeal in Singapore, also awarded costs and damages to RecordTV and an injunction restraining MediaCorp from making further threats against it.

RecordTV's website allows registered users to designate free-to-air TV programmes which are then recorded for their later viewing on their computers.

RecordTV founder Carlos Fernandes was elated with the court's decision: 'As a Singaporean entrepreneur, I am pleased that I have proven that large companies should never underestimate the tenacity of an entrepreneur. They may have well-paid executives, top lawyers, vast budgets, sprawling buildings, but those are no match for an entrepreneur with a great idea.'

His case had grabbed the public's attention because it pitted an underdog against a vastly more established and entrenched opponent. RecordTV made the first strike, launching a pre-emptive lawsuit against MediaCorp in September 2007 for making purportedly groundless threats of legal action.

It had received two letters from MediaCorp after it launched its website in July 2007, asking it to stop its service and threatening to sue it for copyright infringement. RecordTV sued the broadcaster, and MediaCorp made good its threat and counter-sued the start-up for copyright infringement.

Last December, Justice Andrew Ang ruled in favour of MediaCorp, represented by Senior Counsel Davinder Singh of Drew & Napier. Justice Ang decided that while RecordTV had not infringed MediaCorp's right to reproduce its own shows, the start-up had communicated the shows to the public and authorised the public to copy them, and was therefore liable for copyright infringement. He also awarded damages to MediaCorp.

RecordTV, represented by Alban Kang of ATMD Bird & Bird, appealed against Justice Ang's ruling in January. And the Court of Appeal, comprising Chief Justice Chan Sek Keong and Judge of Appeal Justices Andrew Phang and VK Rajah, yesterday reversed Justice Ang's decision.

In its 45-page judgment, the Court of Appeal said it had to consider 'how the courts should interpret copyright legislation in light of the technological advances which have clear legitimate and beneficial uses for the public, but which may be circumscribed or stymied by expansive claims of copyright owners'.

It observed that RecordTV's Web-based offering - which allowed the recording of MediaCorp's free-to-air broadcasts on a remote-storage digital video recorder that users could access on its website to select and play back programmes - was a 'significant technological improvement over existing recording methods'.

It also said that such an offering was a technological advance not addressed by the Copyright Act, in terms of the copyright owner's exclusive right to copy, communicate to the public and authorise the copying and/or communication to the public of copyright-protected material.

The Court of Appeal concluded that RecordTV was doing no more than making it more convenient for its users to enjoy MediaCorp's shows.

'We are of the view that the public interest is better served by encouraging rather than stifling the use of RecordTV's novel technology, especially given that MediaCorp has not suffered any loss from RecordTV's provision of an additional and better time-shifting service to registered users who are licensed to view the MediaCorp shows,' its judgment said.

It said that as long as MediaCorp allowed members of the public to view its free-to-air programmes and record them for their own private and domestic use, the broadcaster had already factored in its alleged 'loss of revenue' with respect to its copyright in those shows. The fact that RecordTV can exploit this relationship does not make its actions unlawful, the court said.

The Court of Appeal ruled that MediaCorp's threats to bring an action for copyright infringement against RecordTV are unjustifiable.

Mr Fernandes, who was named by Businessweek as one of Asia's best entrepreneurs of 2009, told BT: 'As an innovator, I am thrilled to see that I have redeemed myself - I was right and industry giant MediaCorp was, quite simply, wrong. (And) as a citizen, I am baffled. Here, virtually every home in Singapore pays a TV tax to fund MediaCorp's public interest programming. But then they come out and claim that Singaporeans are 'infringing' when they record broadcasted content. Shouldn't they be pleased that more people are watching public interest programming?'

When contacted yesterday, MediaCorp's spokesman said: 'We have just received the decision of the Court of Appeal and any further decisions will only be made after we have had a chance to review fully the decision of the Court of Appeal.'

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