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14 February 2011
According to the Copyright Act, a 'public broadcast' is the communication to the public of 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 all communication to the public – by transmission of information via a wire or wireless broadcasting system or other equipment – of sounds or images originally broadcast by a party other than the original broadcaster.
In 2009 and 2010 the Intellectual Property Office provided guidance in respect of disputes over the public broadcast of works arising from the possibility of users viewing programmes via self-installed satellite antennas and satellite television reception equipment:
These guidelines differ from the view expressed in the Jiayi District Court's September 2010 judgment in a criminal case, in which the landlord of a student dormitory was sued by television stations and broadcasting service providers for infringing the economic rights in works which were exclusively licensed to them, since he had not obtained their authorisation to broadcast publicly their programmes through satellite dish antennas for students to view. The judge held that although the defendant had installed public satellite reception apparatus in the dormitory, those antennas were connected directly to set-top boxes fitted in each room, and the defendant did not additionally install cable television terminals and cables for most residents of the dormitory to watch the programmes directly; 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, when a landlord directly connects satellite reception apparatus and intelligent chip cards which have been purchased from a legal provider to set-top boxes fitted in separate rooms, this is deemed to be legal transmission rather than public broadcast.
The installation of satellite antennas and satellite television reception equipment for programme viewing is common. As the court and the Intellectual Property Office hold different opinions on whether such behaviour infringes the right to publicly broadcast a work, further clarification based on other cases and by the superior court is needed.
For further information on this topic please contact Cathy Ting at Lee and Li Attorneys at Law by telephone (+886 2 715 3300), fax (+886 2 2718 7099) or email (email@example.com).
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