News & Topics

On December 15, 2008, the Intellectual Property High Court upheld a district court decision that a fee-based service for receiving commercial television programs and transmitting them to the contract users via respective user’s base stations and then the internet did not infringe neither the Right to make transmittable or the Right to public transmission under the Copyright Act, Articles 99-2, 23(1).

Article 99-2 : Right to make transmittable
    The broadcasting organization shall have the exclusive right to make transmittable its broadcasts following reception thereof or of wire-broadcasts made following reception of said broadcasts.
Article 23 : Rights of public transmission, etc.
    (1) The author shall have the exclusive right to effect a public transmission of his work (including, in the case of automatic public transmission, making his work transmittable).
 
  The accused company provided a fee-based service for transmitting television programs to the contract users via the internet.  The system of the service had a TV antenna for receiving analogue broadcast signals from the broadcast stations, a booster for amplifying the received signals, dividers for dividing the amplified signals, and base stations for receiving the amplified signals through wires.  Each base station was associated with a specific contract user and included a TV tuner which was activated in response to an instruction from the associated user’s monitor or personal computer to transform the analogue signal into digital signal to be transmitted through the internet to the user.
 

The plaintiff argued that receiving the broadcasted signals, the act for amplifying the received signals by the booster, and transmitting the amplified signals through the dividers to the plural base stations was the “public transmission” and the base stations were the “automatic public transmission systems.”
 
Contrarily, the court ruled that each base station was owned by the associated user and transmitted the digital data only to this user’s computer, namely, the base station was designed to have an one-to-one correspondent to the specific user’s computer and did not have a function to transmit the digital data so that it is available to one or more unspecified persons, through wired or wireless communication system.  In view of above, the court decided that, although the plaintiffs owned the copyrights to the TV programs, the accused service did not infringe the Right to make transmittable or the Right to public transmission.