Court of Appeal, Civil Action, RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd, [2011] 1 SLR 830; [2010] SGCA 43

(1) The appellant/plaintiff, RecordTV, was the provider of a remote-store digital video recorder service, known as iDVR or Internet digital video recorder, which allowed its registered users to request the recording of the respondents/defendants' free-to-air broadcasts in Singapore, based on the scheduling information of the respondents' programming which the appellant has provided. The respondents' broadcasts were received by the appellant's roof-mounted antenna and routed to the appellant's recording computers. If a registered user requested a recording, the appellant's control software would instruct the system to record the said program. Once a recording was made and stored on the appellant's premises' computers, it was made available for viewing to the user who requested the recording on their computers or their TVs. At the end of 15 days after the date of recording, the recordings were deleted.

(2) In relation to its recording system, the appellant's system underwent three configuration changes. In phase 1, the system eliminated the duplication of copies and made only 1 recording despite multiple registered users' requests for the same program to be recorded. In phase 2, the system would make multiple copies of recordings based on multiple user requests for the same programming, but would switch to a single copy being made if system resources were insufficient. In phase 3, the system was reconfigured so that individual copies of the same programming were made for each requesting registered user. The changes were ostensibly made in response to the judgment of the 2nd Circuit in the Cartoon Network LP v CSC Holdings (the Cablevision case). (For purposes of these proceedings, only the appellant's system in relation to phase 1 and phase 2 were in issue.)

(3) The respondents' objected, contending that the use of iDVR infringed its copyright in its MediaCorp programming (broadcasts and films). When the defendant commenced groundless threats of infringement proceedings, the plaintiffs in turn counterclaimed for copyright infringement and sought injunctive relief.

(4) The High Court allowed the respondents' claim against the appellant for copyright infringement. The appellant appealed. 

(5) The Court of Appeal reversed the High Court. It found that it was the registered users requesting the recording of the shows using the appellant's iDVR service rather than the appellant who copied the respondents' programming. 

(6) The court also held that the appellant did not communicate the recorded shows to the public – it was the registered users who requested the recording of a particular show and the registered users who did so did not constitute "the public" for purposes of ss 83 and 84 of the Copyright Act.

(7) The court also held that there is no reason why the aggregate of private and individual communications made to each registered user should transform the nature of such communications into "public" communications. Each registered user could only access the particular show he had requested to be recorded, and not the entire library of recorded works made by the appellant. 

(8) Finally, the court held that the appellant did not authorize the registered users to do any act comprised in the respondents' copyright in their programming. To determine if there is authorization liability, four authorization liability factors have to be considered and evaluated in their totality in the context of the factual matrix of each case: (a) whether the alleged authorizer had control over the means by which copyright infringement was committed and hence, a power to prevent such infringement, (b) the nature of the relationship (if any) between the alleged authorizer and the actual infringer, (c) whether the alleged authorizer took reasonable steps to prevent or avoid copyright infringement, and (d) whether the alleged authorizer had actual or constructive knowledge of the occurrence of copyright infringement or the likelihood of such infringement occurring. On the facts, (a) while the appellant did have the power to prevent potential infringement of the respondents' copyright in its programming by shutting down its iDVR service altogether, it was not necessary to take this drastic step as it had expressly stated in its terms of use that registered users could only use its service to record those shows which they could otherwise legally view and record, (b) while there was a commercial relationship between the appellant and its users, on the evidence, the appellant did not benefit commercially, although the users benefited socially, and there was nothing wrong if the appellant profited from providing its service, (c) the appellant streamed its recorded shows to the users, rather than allowing its users to download them, thereby preventing illegal distribution, and provided in its terms that the recording was only to be used for personal, private and domestic use and only for those shows which a registered user could otherwise legally view and record, meaning that only those registered users in Singapore who held valid TV licenses could use the appellant's iDVR to record the respondents' shows, and not those out of jurisdiction, and (d) given the precautions taken, in absence of express proof of knowledge, it was not right to attribute knowledge of improper usage to the appellant.  For all these reasons, the court held that the appellant was not liable for authorizing the doing of any act comprised in the respondents' copyright in its programming. 

(9) The court did not have to deal with the defenses of safe harbor protection and fair use.