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Copyright infringement disputes regarding the sale of digital set-top boxes for hotel operators to broadcast wireless television channels
I. Overview
Article 3-1 (7) of the Copyright Act provides the following: "Public broadcast means to communicate to the public the content of a work through sounds or images by means of transmission of information by a broadcasting system of wire, wireless, or other equipment, where such communication is for the purpose of direct listening reception or viewing reception by the public. This includes any communication, by transmission of information via a broadcasting system of wire, wireless, or other equipment, to the public of an original broadcast of sounds or images by any person other than the original broadcaster." In addition, Article 37-6 (2) of the Copyright Act stipulates the following: "The provisions of Chapter VII do not apply in the following circumstances except for works subject to the management of copyright collective management organizations: 2. Rebroadcasting works of an original broadcast"
The aforementioned provisions indicate that the act of rebroadcasting works exclude the application to the criminal liability penalties in Chapter 7 of the Copyright Act. If there is a dispute, the right holder can only seek civil remedies.
Taiwan New Taipei District Court's Criminal Judgement 113-Zhi-Yi-Zi-No. 30 dated 6 January 2025 determines that the act of hotel operators using their self-deployed antennas to transmit wireless television program signals to set-top boxes for guests to watch the programs is an act of rebroadcasting as provided for in Article 37-6 (2) of the Copyright Act. Therefore, neither the actions of the hotel operator nor the set-top box operator constitute an offense under Article 92 of the Copyright Act.
II. Facts in the case
The defendant company in the case provided installations of MINIPRO branded commercial mini computers (namely, digital receiving boxes) at the Hotel Royal and approximately 300 hotel operators across Taiwan at a cost of NT$200 per room/month. The NVM set-top box was installed in each room, and the TV programs’ signals were transmitted to the NVN set-top boxes via Ethernet cables; this allowed unspecified hotel guests to freely click on the page integrated by the NVM set-top boxes to watch the four radio television channels, including "TTV Main Channel," "TTV News Channel," "TTV Finance," and "TTV Variety" (hereinafter " the disputed channels") operated by the complainant Taiwan Television Enterprise, Ltd. (hereinafter " the complainant").
III. The grounds for judgement
1. The hotel operators' act of transmitting the program signals to the set-top boxes after receiving the program signals from its self-deployed antennas falls into the category of “public broadcast” and “rebroadcast” provided in Article 3-1(7) of the Copyright Act.
The court adopted the opinion from the following written response from the Taiwan Intellectual Property Office (hereinafter "TIPO") under the Ministry of Economic Affairs (hereinafter "MOEA") to a prosecutor from the Taiwan New Taipei District Prosecutors Office: "The hotel operators receive the signal of the live broadcast of the wireless TV station programs from their self-deployed digital antennas at the hotel buildings. Then they take advantage of cabling systems or other devices to transmit the signals (the original broadcast sound or image) to the set-top box in each guest room. The set-top box then delivers the signals to the TV display. As the hotel guests are referred to as 'the public' under the Copyright Act, it falls within the scope of 'public broadcast,' which is generally called 'secondary broadcast' or 'rebroadcast.'"
2. Public broadcast of wireless TV channels is not the primary business purpose of hotel operators
(1) The rationale for the amendment to Article 37-6 (2) of the Copyright Act states: "For the purpose of direct public listening or viewing, if the original broadcast program is received via radio waves or cable, and then transmitted to the public through broadcast or loudspeaker, such conduct constitutes retransmission of a public broadcast under Article 3-1 (7) or a public performance under Article 3-1 (9) of the same paragraph (hereinafter 'secondary use of public broadcasting'). This type of utilization of copyrighted works is commonly seen in society, such as in hotels, medical institutions, restaurants, cafés, department stores, shopping malls, convenience stores, buses, and tour buses, where television or radio programs are played in places accessible to the public or in public transportation vehicles."
(2) The court cited the reasoning of the Intellectual Property and Commercial Court's Criminal Judgment Xing-Zhi-Shang-Su Zi No. 50 which made the distinction between criminal and civil liability based on "whether the secondary public broadcast act is the primary business purpose of the user": "If the primary business purpose of the user is to provide services or sell goods for direct profit, and the secondary use of the copyrighted work through retransmission of a public broadcast provides limited incidental benefits, the copyright owner can protect their rights through civil remedies, without the need to impose criminal liability for this use. On the contrary, if the secondary public broadcast act is the primary business purpose of the user and significantly impacts the copyright owner’s economic interests, it should not be within the scope of immunity from criminal liability, and should be subject to the provisions protecting the copyright owner's legitimate rights and interests."
3. The court considered that the complainant operated the disputed channels as wireless television stations. Hotel operators could receive the signal of the disputed channels free of charge through wireless antenna receivers. Further, since hotel operators are in the hospitality or tourism industry and their main business purpose is not to publicly broadcast the disputed channels, their act of secondary public broadcasting falls under the provision of Article 37-6 (2) of the Copyright Act, and does not constitute a criminal offense under Article 92 of the Copyright Act for infringing upon another's economic rights through unauthorized public broadcasting. As a result, the defendant company and its responsible personnel, who provided an integrated set-top box interface service to assist hotel operators with the secondary public broadcasting, could not be held liable as accomplices to this crime under the principle of subordinate of complicity, since the hotel operators themselves did not commit the primary offense of unauthorized public broadcasting.