Copyright infringement via satellite
The recent Federal Court decision of TVBO Production Limited v Australia Sky Net Pty Limited  FCA 1132 (7 October 2009) concerned copyright infringement allegations in relation to the applicants’ television series entitled ‘Twin of Brothers’ made in Hong Kong.
Whilst the series was made in Hong Kong, the effect of the Copyright (International Protection) Regulations 1969 and the Copyright Act 1968 (the Act) is that copyright under the Act subsists in a cinematograph film made or first published in Hong Kong as if it had been made or first published in Australia.
The applicants settled their claims against two of the respondents on the doorsteps of the Court. The other two respondents did not appear at the trial, and in their absence the applicants had to prove the case they had pleaded on the balance of probabilities (but without having to deal with any evidence from the respondents).
In the pleadings, the respondents admitted that each of the episodes was a cinematograph film in which copyright subsisted. As such, the copyright in the episodes included the exclusive right to communicate the episodes to the Australian public.
To communicate the episodes in Australia without the licence of the copyright owner would therefore amount to copyright infringement. The definition of ‘communicate’ includes to ‘make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matterâ€¦’
One of the respondents (a Taiwan-based corporation) received and intercepted an authorised transmission of one of the episodes of the Twin of Brothers series, and then retransmitted it from Taiwan via satellite to subscribers of another of the respondent’s pay television services in Australia. This was held to be a communication by electronic transmission to the public in Australia, and the Court found that copyright in the episode had been infringed.
It was also found that one of the directors (who was the chairman, the most senior executive active in the respondent’s business and who represented it in commercial negotiations) was personally liable on the grounds that he played a significant role in the conduct of the corporate respondent in relation to the transmission of the episode.
The Court inferred that the director authorised the infringing conduct. The Court ordered injunctive and declaratory relief against both respondents.