Cathy C. W. Ting
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According to the Copyright Act, "public broadcast" means to communicate to the public the content of a work by means of audio or visual transmission of information through a wire or wireless broadcasting system or other equipment for direct reception by the public. This includes any communication, by transmission of information via a wire or wireless broadcasting system or other equipment, to the public of the sounds or images originally broadcasted by a party other than the original broadcaster.
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The Intellectual Property Office provided the following explanations in respect of disputes over public broadcast of works arising from viewing programs via self-installed satellite antenna and satellite TV reception equipment in 2009 and 2010:
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When a school installs satellite antennas and satellite TV reception equipment in each classroom, the students' watching satellite TV programs is deemed an act of "pure switchon" and does not involve infringement of the economic rights in the programs. However, when a school receives signals at a specific point and then transmits by cable the content originally received to the reception equipment fitted in each classroom, this may involve public broadcast (re-broadcast) of another's work, in which case, unless having to comply with the fair use specified in the Copyright Act, the (re)broadcaster has to first obtain the authorization of the owner of the economic rights in the work or the copyright intermediary organization concerned (i.e., copyright collective management organization). Otherwise, there is a likelihood of infringement of economic rights in the work.
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When a landlord installs public satellite reception antennas for the suites that he/she rents and then distributes the satellite signals to each suite via copper-axial cables for the tenants' viewing, such act differs from "pure switchon," in which each TV set independently receives program signals and the sounds or images originally broadcasted are not distributed to other reception equipment. The former is deemed an act of utilization of public broadcast (also known as "rebroadcast"). The rebroadcaster is the party who receives the satellite signals and then transmits them to each room by self-installed cables. As the cable equipment is installed by the landlord, the landlord is deemed the rebroadcaster, and the reception of satellite programs is not done by the tenants alone. Whether the suite landlord is capable of controlling the playing or stopping of satellite programs is irrelevant.
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When a landlord installs satellite antennas and installs cables in each room and the tenants watch TV programs by making payments to the satellite broadcasting TV service provider, there is no infringement of the economic rights in relevant works. In contrast, when the landlord receives signals at a specific point and then transmits the content of the programs originally broadcasted to the reception equipment fitted in each room by means of cables, this may constitute rebroadcasting of another's works and prior authorization of the owners of the economic rights in the works or the copyright collective management organization concerned must be obtained. Public broadcasting of programs by satellite TV providers or by cable TV providers is deemed an act of public broadcast specified in the Copyright Act. If any work of another party is utilized during the process of public broadcast, the owner of the economic rights in the work must be notified so that licensing can be arranged or use remuneration can be paid.
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However, the said explanations differ from the view expressed in the Jiayi District Court's September 2010 judgment on a criminal case, in which the landlord of a student dormitory was sued by TV stations and broadcasting service providers for infringing the economic rights in the works to which they were exclusively licensed since he had not obtained their authorization of public broadcast of their programs by satellite dish antennas for students' viewing. The judge held that although the defendant installed public satellite reception apparatus in the dormitory, such antennas were connected directly to the set-top box fitted in each room, and the defendant did not additionally install cable TV terminals and cables for most of residents of the dormitory to directly watch the programs; therefore, the installation of cables inside the dormitory by the defendant was not for direct viewing, and the installation of cables for transmitting signals did not constitute an act of public broadcast. According to the National Communications Commission's interpretation in a letter, when a landlord directly connects satellite reception apparatus and intelligent chip cards that are purchased from a legal provider to the set-top box fitted in each room, it is deemed legal transmission rather than public broadcast.
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It is rather common to install satellite antennas and satellite TV reception equipment for program viewing. As the court and the Intellectual Property Office hold different opinions on whether such act infringes upon the right to publicly broadcast a work, further clarification based on other cases and by the superior court are needed.
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