Billy Barnes is a JD candidate at the University of Toronto.
MyTVR, a new remote storage digital video recorder (RS-DVR) service has recently launched in Australia. The service allows paying customers to record TV shows and stream them to their PC or mobile phone. It sounds great, but the legality of the service is far from certain.
This issue has recently been considered in two other jurisdictions: the United States, and Singapore. In the United States, the Second Circuit held that Cablevision’s RS-DVR service did not infringe copyright law. As I wrote two weeks ago, however, the High Court of Singapore (trial level) held that RecordTV’s similar service did infringe copyright. The RS-DVR services faced similar problems in each country: agency, authorization and communication to the public. According to an article written by Nic Suzor, the same problems apply to RS-DVR under Australian law.
Before continuing, I should note an important feature of all three jurisdictions: it is permissible to record TV for time-shifting. In the US, time-shifting falls under fair use. In Singapore and Australia, it is expressly permitted by statute.
It is important to determine who makes the recording. In all three jurisdictions, time-shifting is only permitted for personal use. The RS-DVR service, therefore, cannot make recordings for other people. The American and Singaporean cases both found that the user made the recordings, but the service played them.
Speaking generally, secondary infringement (US) or authorization (Singapore/Australia/Canada) occurs when one entity does something to encourage or sanction someone else’s infringement. The issue was not plead in the American case. The Singaporean court found that RecordTV did authorize its users’ infringement, but as I stated two weeks ago, I believe the judge erred. There can be no authorization when there is no infringement. Like RecordTV, MyTVR is careful to only support channels that are freely available over the air and covered by the statutory timeshifting exception.
If the RS-DVR service is responsible for the playback of recordings then, in all three jurisdictions, it would be liable if it communicated the recording to the public. The American and Singaporean judgments differed on a factual issue. Since the American service kept a separate copy for each user, the court held that it couldn’t be viewed as a communication to the public. They were merely communicating to an individual his own personal copy. This was not true of the Singaporean service and the judge felt that was determinative. Information on how MyTVR works in this respect is unavailable.
Nic Suzor suggests that an Australian court may find CCH persuasive. In CCH, the Supreme Court found that the Law Society of Upper Canada’s Great Library did not infringe copyright by copying and distributing photocopies of copyrighted works to members who did not reside in Toronto. The Great Library was merely instrumental in the user’s exercise of his fair use rights. However, I believe there is a significant difference between the Great Library and MyTVR: money. McLachlin C.J. wrote:
When the Great Library staff make copies of the requested cases, statutes, excerpts from legal texts and legal commentary, they do so for the purpose of research. Although the retrieval and photocopying of legal works are not research in and of themselves, they are necessary conditions of research and thus part of the research process. The reproduction of legal works is for the purpose of research in that it is an essential element of the legal research process. There is no other purpose for the copying; the Law Society does not profit from this service.
The court let the Great Library in on the user’s fair dealing defense because the Library had no purpose outside of it. MyTVR, on the other hand, intends to make money.
As I said in my last post, I think RS-DVR should be permissible based on the effect it achieves without regard to the technology behind it. While it will be interesting to see what an Australian court has to say about RS-DVR when MyTVR is sued, I don’t think it will be immediately relevant to Canada. RS-DVR has a bigger obstacle in Canada than agency or communication to the public: the right to timeshift television programming has not been recognized in Canada. Until that changes, I don’t think we will see RS-DVR here.