Infringement of radio and television companies’ signal rights in Sweden – Comment
Introduction
Background
Facts
Decision
Comment
Introduction
The hijacking and illegal retransmission over the Internet to Internet Protocol set-top boxes of broadcasters’ broadcast signals is a real challenge for the industry, especially for broadcasters that commercialize sports broadcasts and other premium content. In Sweden, criminal and civil cases regarding pirated broadcast signals can often get bogged down in technical details and complicated legal issues of territoriality.
Radio and television companies have certain exclusive rights to their broadcast signals according to Section 48 of the Copyright Act. It is not what is transmitted that is protected, it is the transmission signals themselves that enjoy protection under this so-called “signal right”. The right to signal includes the right to:
- record the broadcast on a device from which it can be reproduced;
- make copies of such recording; and
- distribute copies of such recordings to the public.
With particular relevance to this case, section 48, fourth paragraph also states that radio and television companies have the exclusive right to retransmit their broadcast signals. This retransmission right can be infringed, for example, by someone downloading a television company’s broadcast signals and then retransmitting them via the Internet to set-top boxes without the television company’s consent.
The defendant in this criminal case had sold set-top boxes that gave users access to certain broadcast signals that had been retransmitted over the Internet without the permission of the broadcasters. The digital boxes had been sold via a website administered by the defendant (and without payment to the television companies). Unbeknownst to the defendant, a representative of the television companies had made a straw purchase of an illegal set-top box, which was later analyzed and used to report the defendant to the police.
The central question in the case was whether the defendant, by administering the website and selling the internet protocol set-top boxes, had infringed the companies’ signal rights – either by infringing the television companies’ exclusive right to broadcast itself, or by aiding and abetting the infringement of the retransmission right and thereby commit contributory infringement) – and could be held criminally liable.
Illegal set-top box systems are often part of a global network where broadcast signals are decoded and retransmitted over the internet from different parts of the world to illegal set-top boxes as part of a global criminal enterprise. Such a system often involves many different servers, hosted by different companies worldwide, and agents who sell the set-top boxes in the local market and sometimes even offer illegal monthly subscriptions (for content, the agent has no right to sell access).
The PMCA quickly decided the question of whether the defendant had himself infringed the right of retransmission under section 48 of the Copyright Act. There was no evidence of this, and the defendant did not have the technical knowledge or hardware to do so. The question instead became whether the defendant’s sale of the digital boxes in itself constituted a contributory infringement of the television companies’ signal rights.
The PMCA found that in order to find the defendant liable for contributory infringement of the signal right, there must be a “principal infringement” to which the defendant can contribute. In the circumstances of the case, where illegally rebroadcast signals had been proven in court to be available to buyers of the set-top box in Sweden, the PMCA found that prima facie there was an illegal rebroadcast of the broadcasters’ broadcast signals (a “main infringement”). The PMCA found it immaterial to the question of the defendant’s subsequent liability for contributory infringement where the unlawful retransmission actually emanated from or who was responsible for the “principal infringement”.
Regarding the question of whether the defendant’s actions constituted contributory infringement, the PMCA found that since the set-top boxes were the necessary and essential means of accessing the illegally retransmitted signals in Sweden, the defendant had contributed to the violation of the broadcasters’ infringement. exclusive rights to their broadcast signals through their sale of the set-top boxes.
The defendant was thus found guilty of criminal copyright infringement and sentenced to probation. The defendant was also ordered to pay substantial damages to the injured television companies.
This case represents a small win for radio and television companies and is a good example of a Swedish court straightforwardly assessing complicated technical and legal arguments about broadcast signals, decoding and internet traffic and designing an effective tool to use against broadcast pirates.
Although the criminal penalties for this type of violation are low in Sweden, the radio and TV industry can hope that the legal process to stop such activity at the distribution level and prosecute those responsible will be simpler and more effective. will counteract signal hijacking at the source.
For further information on this topic please contact Oliver Edstrand or Hans Eriksson at Westerberg & Partners Advokatbyrå Ab by phone (+46 8 5784 03 00) or email ([email protected] or [email protected]). The website Westerberg & Partners Advokatbyrå Ab can be found at www.westerberg.com.
Endnotes