ASIA-PACIFIC BROADCASTING

Technology vs copyright

By Mock Pak Lum

The adoption of new technologies is causing some stress to the current copyright regime.

Digital video recorders (DVRs) such as Tivo allow users to time-shift — to record and watch their favourite TV programmes at their leisure.

The Internet, broadband and video-streaming technologies allow the users to place shift — wherever there is an Internet connection, users can watch live broadcast programmes by using a Sling box or its equivalent, or by accessing any of the video-streaming websites operated by the local broadcaster or third-party service providers.

The content owners deploy different legal and technological means to enforce their copyrights, with varying success. Increasingly, the law courts are asked to determine whether there are copyright infringements when new technologies are employed by users and third-party service providers to record shows for later viewing. This situation will be further aggravated by the many Internet-ready TV sets that will be sold in the coming months.

In one of the early test cases, content provider Cartoon Network sued Cable­vision, a US cable-TV operator, for allowing subscribers to record shows on Cablevision’s Remote Storage Digital Recording Service. Traditionally, viewers use their VCRs or DVRs to record the broadcast programmes in their homes. With the Remote Storage Digital Recording Service, the programmes are recorded on Cablevision’s hard disks located in Cable­vision’s headend. There is significant savings for Cablevision as it does not have to deploy new set-top boxes (STBs) with DVR capabilities, to offer time-shifting to its existing subscribers.

But the question here is whether CableVision has infringed on the Cartoon Network’s copyright by providing this service.

In 2008, the US Court of Appeal ruled that CableVision had not infringed on Cartoon Network’s copyright, as it was the subscribers, and not Cablevision, who made the copies.

A similar ruling was delivered recently in Singapore. In 2007, RecordTV, a Singapore company, launched an Internet-based service that provided a similar “iDVR” service to record Singapore MediaCorp’s free-to-air broadcasts.

The registered users logged onto the RecordTV’s website through the Internet and selected the programmes to be recorded. RecordTV operated digital tuners and encoders, which digitised the requested programmes and stored the files on its hard disk.

When a registered user wanted to watch a programme, the video was streamed from RecordTV’s hard disk to the user’s PC through the Internet. Each recording could only be retrieved by the registered user who had requested the recording. RecordTV would delete all recordings of MediaCorp’s content 15 days after the date of recording.

RecordTV underwent three different phases of operations to meet the copyright requirements. When it first launched in 2007, it stored only one copy of a requested programme, regardless of the number of user requests. It then went into a hybrid mode whereby some programmes were stored in multi­ple files based on the number of user requests. Finally, in the second half of 2008, RecordTV made multiple copies of all recorded programmes to tally with the number of user requests.

MediaCorp issued an order to Record­TV, which the High Court upheld, to stop the iDVR service. RecordTV subsequently appealed. In December 2010, the Court of Appeal overturned the decision by the High Court judge and ruled that RecordTV did not infringe on MediaCorp’s copyright.

The difference in RecordTV’s and Cablevision’s cases is that CableVision has a contractual relationship with Cartoon Network to carry its channel on its cable-TV platform. Whereas, RecordTV did not have any contractual relationship with MediaCorp. CableVision was offering a value-added service to its own subscribers, whereas RecordTV could have generated advertising revenue by exploiting MediaCorp’s free-to-air content.

The court ruled that RecordTV did not infringe on MediaCorp’s copyright by examining three issues. First, it ruled that RecordTV did not copy the MediaCorp content as it was the registered users who copied the shows by their requests. Second, it ruled that RecordTV did not communicate the MediaCorp shows to the public as the content was only made available to the registered users. And that these registered users had paid the TV licences and can watch the free-to-air programmes. Third, it ruled that RecordTV did not grant any right to the registered users to copy MediaCorp’s shows.

MediaCorp countered that RecordTV could have profited from the iDVR service at MediaCorp’s expense if RecordTV had garnered enough eyeballs to attract advertising revenue.

The Court of Appeal agreed but noted “the fact that MediaCorp is prepared to broadcast the MediaCorp shows on a free-to-air basis to members of the public who hold valid TV licences and who are legally entitled to view and record these programmes for their own private and domestic use, it has already factored in its alleged ‘loss’ of revenue with respect to its copyright in those shows”.

The court also noted that MediaCorp did not suffer 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.

The Court of Appeal further stated that there is a public interest in not allowing copyright law to hinder creativity and innovation. Where the statute is not clear, the court must strive to strike the right balance between the copyright owner’s interests and the public interest in the use of new technology.

Thus, will this ruling be the tip of the iceberg that could sink the content-creation ocean liner? I think not; these are just side shows.

The main challenge facing content creators and owners is the significant fragmentation of the viewing audience. This audience fragmentation makes it difficult for producers to generate a good return in producing good-quality original content. Advertisers and advertising agencies have to place their ads in many platforms in order to reach their target audiences.

In the past, there were just two or three channels on broadcast TV. Then there were 500 channels of cable or satellite TV. With Internet-ready TV sets, viewers can access many video-streaming sites on the World Wide Web from many countries around the world. The number of channels is mind-boggling. Of course, the copyright regime dictates that many channels are currently accessible only if the IP address of the TV set is within the geographical boundary of the video source, but this may change.

The Internet has proven to be a good platform for buyers and sellers to meet. In many industries, the role of the middleman is made redundant.

Will we see a day when the local broadcaster (middleman) is made redundant in the packaging of foreign premium content, when the viewer “streams” video directly from the website of the premium content provider? And the role of the local broadcaster is reduced to providing local news and entertainment content?

Content creators and broadcasters in smaller markets may not generate enough revenue to invest in good-quality original content. My view is that, in such cases, the local governments have to step in to shore up the national broadcasters by providing funding and support the domestic content industries. These actions have always been seen with suspicion as funding leads to greater government influence. Non-action, however, could lead to a dearth of quality local content.

I am sure that the media industry will gradually adjust the copyright regime to cater to new technological innovations. But I think governments and regulators have to start thinking how to help the local broadcasters and domestic content creators meet the challenge of the million-channel TV set.

Add this page to your favorite Social Bookmarking websites