(By You Yunting) The U.S-based TiVo Inc. developed and marketed its TiVo, a digital video recorder (DVR), which can provide programs and services like on-demand and watch-back for its users. Similar to TiVo, Chinese cable operators and cable television stations provides similar services for its programs, shows and services. This means that users who miss the program can choose an on-demand program on the television. However, cable television stations are generally purchasing the right of broadcasting for the program, without the right of communication of information via a network. This purchase is at risk of copyright infringement. In a previous post Which Copyright Should an Internet TV Operator Purchase?, we discussed the difference between the right of broadcasting and the right of communication of information via network. Today we will introduce such a typical case in the following.
According to reports (note: the link is in Chinese), Shenzhen Topway Video Communication Co., Ltd (002238) permitted its users to watch the requested T.V show, The Legend of Zhen Huan (which tells the story of a concubine living during the Qing dynasty who climbs her way up the ladder to become Empress), through the function of a watch-back on its exclusive website. Shenzhen’s courts decided that such an on-demand watch-back service infringed the exclusive right of communication of information via network held by Letv.com. This is the first time that a court decision considering the playback or watch-back case has classified this into the right of communication of information via network.
Introduction to the Case:
Plaintiff: Letv.com
Defendant: Shenzhen Topway Video Communication Co., Ltd (002238) (the “Topway Video”)
Court of first instance: Futian District Primary People’s Court
Topway Video was a Shenzhen-based cable operator responsible for construction, operation and maintenance of cable television network. In February 2013, Letv.com discovered that Topway Video, without authorization, provided the Legend of Zhen Huan through the method of a “watch-back” service on its exclusive website.
Letv.com considered that it had obtained the exclusive right of communication of information via network for the Legend of Zhen Huan from the copyright holder for a six-year period starting from March 2012. As such, Letv.com considered that Topway Video providing the watch-back services constituted an infringement of its exclusive right of communication of information via network. Therefore, Letv.com filed a lawsuit against Topway Video.
Topway Video argued that, within the context of tri-network integration, the watch-back service should be considered similar to a television service and thus should belong to the category of a broadcast right.
In the judgment of the Futian Primary People’s Court, the court considered that the defendant providing a seven-day watch-back service on its exclusive website with the programs broadcast simultaneously on television, should be considered as making the Legend of Zhen Huan available to the public, in a manner where the public can watch the Legend of Zhen Chuan at any time and at any place they wish. Such acts clearly constitute the elements of the right of communication of information via network. As such, the defendant had not gotten authorization from the plaintiff Letv.com and must undertake liability for infringement and pay compensation. Consequently, Letv.com required Topway Video to pay 20,000 Yuan for its losses.
Lawyers’ Comment:
Currently as to what type of copyright television watch-back services constitute, there are two interpretations: one interpretation, the same as the plaintiff, considers television watch-back services as an on-demand service, thus falling within the category of the right of communication of information via network; another interpretation holds that the television watch-back service is provided through local cable networks and thus falls within the right of broadcasting, as its data transmission line belongs to the category of television transmission.
The business significance of the two interpretations is clear. The right of broadcasting and the right of communication of information via network are two distinct licensing avenues for the content providers. In the event that television watch-back services fall into the category of the right of communication of information via network, the television website or cable television companies providing watch-back services for users must additionally purchase the right of communication of information via network. Otherwise, providing the television watch-back service is beyond the authorization obtained from the copyright holder and thus is likely to constitute infringement.
It is not difficult to answer this question by looking at the provision of China’s laws and regulations. Article 10 of the Copyright Law stipulates the interpretation of the two rights in the following:
The right of broadcasting is defined as: the right to publicly broadcast or communicate one’s work by means of wireless or wired dissemination, re-broadcasting and to communicate one’s broadcast work to the public through a loudspeaker or any other analogous instrument used to transmit symbols, sounds or images;
Whilst the right of communication of information via network is defined as:, the right to make one’s work available to the public by wired or wireless means, enabling members of the public to access the work from any place at a time chosen by them.
Looking at the definition of the two rights, the character of the right of broadcasting shall be similar to television broadcasted on-demand through programs. Consequently, the watch-back service must be considered an on-demand service and thus must have received the separate authorization of the right of communication of information via network.
Lawyer Contacts
You Yunting：86-21-52134918 youyunting@debund.com/yytbest@gmail.com
Disclaimer of Bridge IP Law Commentary
Short Link: