Chinese media giant cites '24/7' copyright infringement in site-block hearing

[Len]

Hong Kong-based producer TVB has argued that its copyright content is being infringed in three ways -- video on demand, replay, and live streaming -- which means proof of piracy is 'more evident' than in previous cases.

The world's largest producers of Chinese media content, TVBO Productions and Television Broadcasts (TVB), have told the Australian Federal Court that despite scepticism from Justice Nicholas, there is actually more evidence of piracy in this case because content is being infringed "24/7" and in multiple ways.

According to counsel for TVB, there are six categories of content being accessed: Pre-recorded films made by TVB; pre-recorded films made by a third party but exclusively licensed by TVB in Hong Kong but not in Australia; a mix of pre-recorded films and live TV; live content that is read from script; non-scripted live TV; and content with a non-exclusive licence -- with the latter two categories not relevant to the copyright infringement case.

"[There is a] multitude of copyright works on a daily basis that are being infringed ... this is a large-scale infringement that is occurring on these boxes -- five channels on a constant basis," counsel for TVB said on Wednesday morning.

"The vast majority of films that are being reproduced and communicated ... are infringing," he added, stating that around 51 percent of all TVB content being consumed via the set-top boxes in Australia are TVB-made and TVB-exclusive licensed films -- higher when taking into account the mixed category of pre-recorded films and live TV.

This therefore fulfills the primary purpose test, TVB argued.

"The evidence shows that in terms of the films that have been communicated, copyright is owned either by TVB or by third parties, and that neither TVB nor the third parties have licensed it," counsel said.

In getting past the stumbling block presented during the hearing last month that live Chinese TV broadcasts do not constitute copyright infringement when viewed in Australia, counsel argued that the live TV streams are reproduced or recorded on the facilitating server outside Australia, and then communicated through the set-top boxes with a delay of between one and four minutes.

"Because the way the system is set up, it compounds itself ... in a number of instances, a particular domain name, which we refer to as the portal target domain name, allows a communication path not just to live TV, but it's also the communication path to other applications such as replay and video on demand," counsel for TVB said.

"It compounds the submission that the primary purpose of the online location which is the facilitating server is to facilitate the infringement of copyright using that communication path.

"If one had concerns about live TV, one shouldn't based on the analysis we've done ... if one adds that live TV infringements together with video on demand together with replay, there could be no doubt that the primary purpose of the online locations is to infringe copyright."

The barrister concluded that the main difference between this case and other piracy site-block hearings is that there is a 24/7 reproduction and infringement occurring, with access to live TV, video-on-demand, and replay functions -- "so in a sense it's more evident than those cases".

Justice Nicholas expressed his disagreement with this statement, but reserved his judgment.

No ISPs showed up for the additional hearing on Wednesday, after last year establishing the procedure of not being present during piracy site-block trials.

During a previous hearing in April, Nicholas J had remained unconvinced that watching a live stream in Australia of TVB's Chinese broadcast content amounts to copyright infringement, because no copy of the content is being made.

"If most of what is occurring here is a reproduction of broadcasts that are not protected by copyright, then the primary purpose is not to facilitate copyright infringement," Nicholas J pointed out at the time.

TVB's application takes issue with seven separate set-top boxes, priced between AU$155 and AU$240, that run on the Google Android operating system and use proprietary software applications that work only with each box.

These applications allow users to watch video-on-demand content, live TV broadcasts, and replayed TV broadcasts from five separate channels owned by TVB by accessing them through "target application markets".

The Chinese broadcaster is therefore seeking an order to sever the domain names involved in the process, which it said would then halt these devices from accessing the content.

According to TVB, the impact of piracy on its business caused a revenue loss of around AU$35 million between 2011 and 2017, and reduced its employee headcount in Australia by 35 positions.

A similar hearing last week saw Roadshow Films successfully gain orders by the Federal Court for ISPs to block 16 online locations of alleged piracy websites that were being used by smart TV boxes to access alleged copyright-infringing streaming services via apps.

"Each respondent must, within 15 business days of service of these orders, take reasonable steps to disable access to the target online locations," Nicholas J said, including by DNS blocking, IP address blocking or rerouting, URL blocking, or "any alternative technical means for disabling access".

The TVBO/TVB and Roadshow cases began in December 2017.

Last week, Foxtel additionally brought yet another piracy site-block case to the Federal Court, this time targeting 15 online locations involving around 27 domain names.

Previous site-block hearings saw content owners successfully seek blocks against Kickass Torrents, the Pirate Bay, and more than 200 additional alleged piracy sites.

Under the initial ruling, rights holders are to pay a AU$50 fee per domain they want to block, with the websites to be blocked within 15 business days.

Website blocking was legislated under the Copyright Amendment (Online Infringement) Act, which passed both houses of Parliament in mid-2015 and allows rights holders to obtain a court order to block websites hosted overseas that are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright under Section 115A.

The Australian government then opened consultation on the piracy site-blocking laws in mid February, with the Department of Communications seeking feedback on the effectiveness and efficiency of the mechanism; whether the application process and injunctions are operating well; and whether any amendments are required.

According to the Department of Communications, there has been a "correlating" reduction in copyright infringement since the legislation was passed -- although this also coincides with the launch of streaming services in Australia, as noted by a previous report by the department.