It has not been smooth sailing for Hong Kong-headquartered Television Broadcasts Limited (TVB) in its attempt to have Australian ISPs block access to online services linked to a number of set-top boxes.
The company today appeared in Federal Court in Sydney to argue its case that Telstra, Optus, Vocus and TPG should block their customers from accessing services linked to the Android-based A1, BlueTV, EVPAD, FunTV, MoonBox, Unblock, and hTVS.
The set-top boxes are largely used to stream Chinese-language content, TVB said at a hearing last month.
The company wants to block domains used for streaming as well as proprietary app marketplaces run by the set-top boxes’ makers.
The set-top boxes provide access to live broadcasts, video-on-demand, and TV ‘replay’ services through their proprietary apps.
The ISPs that would be subject to the injunction have not appeared in court to oppose it.
A key hurdle for TVB has been proving that its broadcasts are protected by Australian copyright law. Section 115a of the Copyright Act allows copyright holders to apply for an injunction compelling a telco to block access to an overseas-based online service linked to piracy.
However, 115a requires that the “primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright”. As a result, if a significant portion of the material available from a service is not subject to copyright protection in Australia, an application for injunction may fail.
The root of the issue in TVB’s case is China not being a party to the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, which would see Chinese broadcasts protected by Australian law.
One possible view that could be formed is that “the purpose of this system [the set-top boxes] is to make available a broadcast that’s not copyright protected in this country, in this country,” presiding judge Justice Nicholas noted today.
“If 10 per cent of the content was infringing content, how could you say the primary purpose is infringing copyright?” the judge asked.
TVB has argued that much of the material accessible through the seven set-top boxes it is targeting clearly violates its copyrights regardless of the status of live TV broadcasts — either because it is reproducing TVB’s cinematograph films (which are protected) or, it argued today, because reproducing its broadcasts also violates literary copyright in the form of the scripts prepared for news segments and the subtitles it produces for some of its channels.
The argument that the copyright of TVB’s “literary works” is being violated was not foreshadowed at a previous hearing for the case.
TVB counsel Julian Cooke argued that “a significant part of their [the operators of the streaming services] enterprise is showing infringing works”.
Cooke said he was “not sure if you have to get over the 50 per cent [of infringing content] to get primary purpose”, although TVB argues that the vast majority of material accessible through the set-top boxes is infringing (the company has put the percentage at about 83 per cent).
“This is a large-scale infringement occurring on each of these boxes,” he argued. Five TVB channels are accessible through the set-top boxes “on a constant basis”.
“If one had any concerns about the [copyright status of the] live TV and we say one shouldn’t… then one adds that live TV infringement together with the video-on-demand together with the replay” to leave “no doubt that primary purpose of these locations is to infringe copyright,” Cooke argued.
Justice Nicholas reserved his decision. A judgement in the case is likely to take a “couple of months” because “it does require some close attention,” he said.
Last month Roadshow Films was successful in its quest for an injunction targeting an Android app and service for set-top boxes called HDSubs+.
Pay TV company Foxtel is currently seeking to have telcos block 15 sites it says are used to facilitate piracy.