Telekom Television Ltd v SATSOL Ltd [2012] SBHC 132; HCSI-CC 318 of 2012 (23 November 2012)

HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 318 of 2012.

BETWEEN:

TELEKOM TELEVISION LIMITED
First Claimant

AND:

IMPARJA TELEVISION PTY LIMITED
Second Claimant

AND:

SATSOL LIMITED
Defendant.

Date of Hearing: 23rd November, 2012.
Date of Ruling: 23rd November, 2012.

Mr. J. Sullivan QC and R. Kingmele for the Claimants
Mr. A. Radcliff for the Defendant.

RULING.

Faukona J: This is an application for interlocutory orders filed on 21st November 2012, following filing of a claim under category A on the same date.

2. On 23rd of November 2012, the Court sat and heard the submissions. After close of submissions, the orders sought were granted on verbal basis. I promise to give reasons for the decision, of which I now do so.

3. In this application the "Claimants seek interlocutory injunction restraining, until or further order, the defendant, its officers, employees and agents from broadcasting or transmitting within Solomon Islands in any way whatsoever (including without limitation by way of transmission, cable or satellite transmission) and whether by live, delayed, repeat television broadcasts or otherwise and whether by free to air, direct to home, subscription service or otherwise any cricket match be it Vodafone test match series and KFC T20 international series, held in various ovals in Australia under the auspices of cricket Australia.

4. Also seek interlocutory injunction restraining, until judgment or further order, the defendant, its officers, employees and agents from broadcasting or transmitting within Solomon Islands in any way whatsoever (including without limitation by way of terrestrial, cable or satellite transmission) and whether by live, delayed, repeat television broadcast's or otherwise and whether by free to air direct to home, subscription service or otherwise any television program whatsoever initially broadcast in Australia by the second Claimant through its Imparja Channel operation out of the Northern Territory, Australia and whether or not under the logo of that channel.

5. A consequential interlocutory injunction restraining until judgment or further order, the defendant, its officers, employees and agents from:

(a) Advertising, by any means whatsoever, the broadcast or transmission within Solomon Islands by any means whatsoever, of any match or highlight; and

(b) Selling advertising space by any means whatsoever, in connection with the broadcast or transmission within Solomon Islands of any such match or highlight.

6. A consequential interlocutory injunction vesting until judgment or further order, the defendant, its officers, employees and agents from:

(a) Advertising, by any means whatsoever, the broadcast or transmission within Solomon Islands by any means whatsoever of any such program so broadcast by the Second Claimant.

(b) Selling advertising space by any means whatsoever, in connection with the broadcast or transmission with Solomon Islands of any such program.

7. The submissions appear to reflect that there were prospect of resolving the case prior to filing of the claim. That perhaps could not materialise because the Defendant has refused to give an undertaking that it will not broadcast the programs. Despite having knowledge of the Claimants' protest, the Defendant continue rebroadcasting the programs originated from Imparja in Australia, which include live cricket matches held under the auspice of cricket Australia. The re-broadcast of the Imparja programs is without the consent of Imparja and the cricket is an infringement of Solomon Telekom Limited (TTL)'s copyright.

The facts.

8. The facts do not appear to be in dispute. Telekom Television Limited (TTL) holds a licence to operate television service pursuant to Section 6 of the Television Act. It broadcasts various programs on free to air in Honiara and elsewhere in Solomon Islands. Among those programs are cricket matches currently played in Australia for which it has exclusive licence to broadcast those matches live. ESS holds exclusive television right from Cricket Australia for the region including Solomon Islands.

9. Imparja broadcast free to air within its Australia licence are (Remote Central and Eastern Australia). Viewers outside of that area viewing programs would put Imparja in breach of its licence. Imparja programs are encrypted and require an authorised smart card and decoder box to view the program within the area.

10. Imparja broadcast Channel 9 programs under a program supply agreement. Those programs include live broadcast of the same cricket matches.

11. Imparja programs are broadcast through the use of Optus CI/D3 satellite. The broadcast footprint of that satellite includes Solomon Islands although the signal is still encrypted when it is received in the Solomon Islands.

How Satsol operates its TV redistribution service.

12. Mr Sullivan describes the operation as thus, Satsol operates a subscriber television and also holds a licence to provide a television service under S. 6 of the Television Act. It broadcasts encoded signal locally in Honiara and environs, which its subscribers pick using a special serial connected to a set top box. Satsol customers purchase subscriptions and are given smart cards, which provide an electronic key to enable the set-top box to unscramble or decode the signal.

13. In such doing, Satsol has been rebroadcasting Imparja's program content by de-encrypting Imparja signal using decoding device, which is unauthorised by Imparja from free to air and/or encrypted satellite services in Australia. This content includes cricket broadcasts. Satsol's re-broadcast of Imparja programs include Imparja's logo and advertising content from Northern Territory.

14. In broadcasting, Satsol acquires signal from Australia satellite, decodes any encrypted signal and then rebroadcasts using its equipment. Its transmission is slightly later in time to that of TTL.

15. Satsol admits receiving Imparja programs but they are received by fortuitous reception. It argues that should broadcaster (Imparja) disagrees, and then the onus is on them to reduce the signal footprint. I should think that no one should control the business of others. If broadcasting coverage is aimed at remote and central Australia then the transmitted signals have to be maintained on certain level to enable a better reception. The question is has Satsol authorised to do what it did?

16. Tony Ferris letter (Exh.LP-1) dated 27th September, 2011, described how Satsol operates its TV redistribution service. It operates by receiving TV signals at the Satsol transmission in Honiara from either satellite both authorised Pay TV and FTA or terrestrial VHF analogue FTA broadcast. The signal is then redistributed, unedited to customers via an encrypted digital UHF signal. This signal is then received at the customer's house using a standard digital UHF antenna before it is un-encrypted through a decoder. I noted there was no reply to that letter. As such has placed Satsol in an awkward position. It would be difficult to speculate anything as silent could mean nothing. However, it boils down to the very fact that Satsol was not authorised to rebroadcast Imparja's program.

17. Furthermore, there is no change in circumstances even if reception is acquired from the footprint of Optus C1/D3 satellite through which Imparja used to broadcast its program. The fact remains the same that rebroadcasting of the material originating from Imparja's transmitters is an infringement of the Claimant's copyrights.

18. As a licensed broadcaster, TTL has a copyright subsist in every broadcast from its broadcasting station in Solomon Islands under Section 11(1) (с) and 2 (c) of the Copyright Act. Therefore, it is entitled under Section 13(1) (b) of the Act to any such copyright to the images and sound it transmitted.

19. This case premises on the allegation that Satsol infringes copyright in broadcast when it is not being the owner of a copyright without a licence as required by Section 14(3) (c), by way of rebroadcasting to members of the public whether they pay annual subscription fee or not. Those infringement prejudice producers and makers of intellectual property and community as well.

20. It is this infringement of copyright in broadcast that the Claimants seek to protect by instituting this suit seeking interlocutory injunction under Section 16(1) of the Copyright Act.

21. There is argument that Imparja does not have copyright in Solomon Islands by virtue of Section 11 (2) (c), as it does not broadcast from a broadcasting station Solomon Islands. In furtherance there is no material evidence why Imparja is interested in these proceedings. It may be true there is no correspondence or evidence to that effect. However, there is some indication which Mr Sullivan QC submits that Imparja is an interested party as its rights are also affected.

22. First Claimant says it has an exclusive licence upon effect of the agreement signed on 13th November, 2012, with ESPN Star sports which it was granted exclusive rights to broadcast cricket matches, see appendix 1: event and matches.

23.The agreement has qualified TTL to acquire exclusive licence within the definition of Section 18 of the Act which has the right of action and is entitled to same remedies as if its licence has been assigned of the copyright. At the same time its rights are current with the rights and remedies of the copyright owner.

24. As the operator of the licence broadcasting station which live and simultaneous transmission of the cricket matches are the first broadcast, TTL is entitled to a copyright subsisting under the Act. Though no material evidence is available in relation to any agency or representative, it appears Imparja has given consent for these proceedings.

25. TTL has paid no doubt considerable amount of money describe as cost and skill in enabling or preparing and transmitting program to the public. The costs include acquiring rights to access images and sounds and even complete television programs from outside sources. Satsol spent no money and suffer no damage.

26. It would appear, that if nothing is done Satsol will be re-broadcasting television coverage of the cricket matches it has received from Imparja free to air satellite services. The rebroadcasting is said to infringe the Claimants' exclusive rights hence come to Court and seek injunction. There is no doubt that re-broadcasting of the material originating from Claimants transmitters is an infringement of their copyrights. Therefore, the Claimants are entitled to orders preventing Satsol from re-broadcasting such material.

27. Having said that the balance of convenience favours injunction sought and must be granted accordingly.

The Orders.

1. The defendant, its officers, employees and agents are restrained until judgment or further order from –

(a). Broadcasting or transmitting within Solomon Islands in any way whatsoever (including without limitation by way of terrestrial, cable or satellite transmission) and whether by live, delayed, repeat television broadcasts or otherwise and whether by free to air, direct to home, subscription service or otherwise –

i. any cricket match in the Vodafone test match series held in Australia under the auspices of Cricket Australia, including without limitation –

ii. The second test between Australia and South Africa to be held at the Adelaide Oval, Adelaide, South Australia between 22nd and 26th November 2012.

iii. The third test between Australia and South Africa to be held at the West Australian Cricket Ground, Perth, Western Australia between 30th November and 4th December 2012.

iv. The first test between Australia and Sri Lanka to be held at Blunstone Arena, Bellirive, Hobart, Tasmania between 14th and 18th December 2012.

v. The second test between Australia and Sri Lanka to be held at the Melbourne Cricket Ground, Melbourne, Victoria between 26th and 30th December 2012;

vi. The third test between Australia and Sri Lanka to be held at the Sydney cricket Ground, Sydney, New south Wales between 3rd and 7th January 2013.

(b). Any cricket match in the Commonwealth Bank one day international series held in Australia under the auspices of Cricket Australia, including without limitation -

i. Australia v Sri Lanka at the Melbourne Cricket Ground, Melbourne, Victoria on 11th January 2013;

ii. Australia v Sri Lanka at the Adelaide Oval, Adelaide, South Australia on 13th January 2013;

iii. Australia v Sri Lanka at the Brisbane Cricket Ground (the Gabba), Brisbane, Queensland on 18th January 2012;

iv. Australia v Sri Lanka at the Sydney Cricket Ground, Sydney, New South Wales on 20th January 2013;

v. Australia v Sri Lanka at Blunstone Arena, Bellierive, Hobart, Tasmania on 23rd January 2013;

vi. Australia v West Indies at the West Australian Cricket Ground, Perth, Western Australia on 1st February 2012;

vii. Australia v West Indies at the West Australian Cricket Ground, Perth, Western Australia on 3rd February 2013;

viii. Australia v West Indies at the Manuka Oval, Canberra, Australian Capital Territory on 6th February 2013;

ix. Australia v West Indies at the Sydney Cricket Ground, Sydney, New South Wales on 8th February 2013;

x. Australia v West Indies at the Melbourne Cricket Ground, Melbourne, Victoria on 10th February 2013;

c. Any cricket match in the KFC T20 international series held in Australia under the auspices of Cricket Australia, including without limitation –

i. Australia v Sri Lanka at the Sydney Olympic Park, Sydney, New South Wales on 26 January 2013;

ii. Australia v Sri Lanka at the Melbourne Cricket Ground, Melbourne, Victoria on 28th January 2013.

iii. Australia v West Indies at the Brisbane Cricket Ground (the Gabba) Brisbane, Queensland on 13th February 2013;

d. any highlights of any such match.

2. A consequential order that the defendant, its officers, employees and agents be restrained until judgment or further order, from –

a. advertising, by any means whatsoever, the broadcast or transmission within Solomon Islands by any means whatsoever, of any such match or highlight; and

b. Selling advertising space, by any means whatsoever, in connection with the broadcast or transmission within Solomon Islands or any such match or highlight.

3. The defendant, its officers, employees and agents, be restrained until judgment or further order, from broadcasting or transmitting within Solomon Islands in any way whatsoever (including without limitation by way of terrestrial, cable or satellite transmission) and whether by live, delayed, repeat television broadcasts or otherwise and whether by free to air, direct to home, subscription service or otherwise and whether by free to air, direct to home, subscription service or otherwise any television program whatsoever initially broadcast in Australia by the second claimant through its Imparja Channel operating out of the Northern Territory, Australia and whether or not under the logo of that channel.

4. A consequential order that the defendant, its officers, employees and agents be restrained until judgment or further order, from –

a. Advertising, by any means whatsoever, the broadcast or transmission within Solomon Islands by any means whatsoever, of any such program so broadcast by the second claimant;

b. Selling advertising space, by any means whatsoever, in connection with the broadcast or transmission within Solomon Islands of any such program.

5. Costs in the cause.

BY THE COURT.
Faukona J