Television Jamaica Ltd v Linscom Network Ltd
| Jurisdiction | Jamaica |
| Judge | Batts, J. |
| Judgment Date | 29 June 2018 |
| Neutral Citation | [2018] JMCC Comm 18 |
| Docket Number | CLAIM NO. 2015 CD 00025 |
| Court | Supreme Court (Jamaica) |
| Date | 29 June 2018 |
[2018] JMCC Comm 18
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE COMMERCIAL DIVISION
Batts, J.
CLAIM NO. 2015 CD 00025
Georgia Gibson-Henlin, Q.C., and Nicola Richards instructed by Henlin Gibson Henlin for the Claimant
Andrew Willis and Tewana Watson instructed by A.W. Willis & Associates for the Defendant
Television Jamaica Ltd. v. CVM Television Ltd. [2017] J.M.S.C. Comm 1 (Claim No. 25 00112).
Section 31 and 32 of the Copy Right Act
COPYRIGHT — Cable Television — Whether Defendant infringed copyright by broadcasting Diamond League event — “overspill” — Whether Defendant liable — Statutory construction — Copyright Act sections 31(5), 31(1), 32(3).
The Claimant seeks a declaration and damages in consequence of an alleged breach of its copyright in the IAAF Diamond League 2014 events held in Eugene and New York, both in the United States of America. In its Amended Defence the Defendant, denied the Claimant's entitlement to exclusivity, alleged that the programme became available by way of satellite footprint or overspill, and denied knowingly infringing the Claimant's copyright.
The factual issues were not difficult to resolve. The Claimant established its entitlement to the exclusive right to broadcast the programme in Jamaica with the evidence of Mr. Stephen Greig, the Claimant's corporate legal secretary at the time. His witness statement dated 29 th March 2018 stood as his evidence in chief. Mr. Greig spoke to the Licence Agreement, page 1 of Exhibit 1 (Exhibit 1 is an agreed Bundle of Documents). He explains, without being contradicted, in paragraphs 11 and 12 of his witness statement that;
“11. The “event” and “designated right” are licensed to the Claimant by Trans World International Inc. The company that has the distribution rights to the event in Jamaica, pursuant to the agreement above. The owner of the copyright in the works is the International Association of Athletics Federations (IAAF).
12. In accordance with Clause C(1) of the licence Agreement the Claimant is the exclusive licensee of the rights via the “designated rights” during the licensed period throughout the licensed territory, which includes Jamaica. The designated rights cover all means of broadcast, television including terrestrial, satellite and cable television (analogue and digital).”
The Defendant's main attack on the exclusivity of the licence was to suggest that there was a contractual allowance in respect of “overspill” or “satellite footprint”. They pointed to Clause 10 of the license agreement:
“10.1 Licensee acknowledges and agrees that Licensor reserves the right to authorise third parties to transmit the Programme(s) for reception and/or viewing outside the Licensed Territory or for reception and/or viewing in those parts of the Licensed Territory where the Designated Rights are non-exclusive.
10.2 Licensee acknowledges that due to the inherent capability of:
10.2.1 Satellites to beam down signals which are not confined to territorial boundaries;
10.2.2 Terrestrial signals to be capable of reception and/or viewing outside of territorial boundaries.
10.2.3 broadband users to evade side-blocking security measures; and,
10.2.4 mobile signals to overlap territorial boundaries,
(the circumstances above being individually, and/or together called ‘overspill’) a transmission made in accordance with Clause 10.1 above may be capable of reception and/or viewing within the Licenced Territory including, as applicable, those parts of the Licensed Territory where the Designated Rights granted
hereunder are exclusive. The parties agree that the occurrence of said overspill shall not constitute a breach of this Agreement.
It was submitted that, by virtue of this Clause, the Defendant could not be liable for transmitting programmes received as overspill.
I disagree. The Clause is an exemption clause. It precludes the grantor of the licence being liable to the grantee for errant transmissions and/or transmissions due to third party activity, cumulatively termed overspill. The Defendant's counsel was unable to explain how a non-party to the licence agreement could benefit from that exception. I put the analogy to counsel, and repeat it here, of a thief in his defence saying the owner/complainant was responsible for not adequately securing his property. The parties to the licence agreement recognised that overspill may lead to the broadcast's availability to third parties. They agreed that the licenser would not be in breach by reason of such overspill. In so doing the licensor was not authorising, or granting a right to, third parties to broadcast the copyrighted work received by way of overspill in Jamaica.
I am fortified in this construction of the contract by the evidence of Mr Milton Walker. He indicated that Clause 10 of the agreement was primarily aimed at territories where there was a shared border. However he also said:
“ Q: Put to you that any showing of the programme by Linscom by virtue of overspill received by satellite
A: No those signals are illegal so not covered by overspill agreement”
To the court he gave the following answer:
“Q The overspill would be illegal?
A: Yes, Diamond League shows on specific channels. In Jamaica cable companies show American networks, ABC CBS NBC FOX. They have no agreement to broadcast these channels in Jamaica. Because programming is domestic to the United States. Overspill re Canada, USA, Mexico land borders. NBC [may be] legally airing a programme it will spill over the border. That's what clause speaks to. No territory close to us within 700 miles that had the Diamond League. But it was shown in USA and Canada. So for cable companies to show a network is illegal. They are showing signal illegally because no contract to give them the right to that.”
Mr. Walker is wrong in thinking Clause 10 is applicable only whenever there is a shared border. However he is, I think, spot on when he suggests that the clause does not protect those who broadcast in breach of copyright, or as he put it “illegally”. This aspect of the defence took an unexpected turn as the Defendant's first witness, Mr. Garth Schleifer, denied the broadcast was due to overspill, he said:
“Q: NBC not because of overspill
A: If I understand what I am saying yes.
Q: which is correct did you show NBC because of overspill or because there is a contract?
A: There is a contract, no overspill because showing NBC.”
The parties to the licence agreement recognised that signals carrying the event might reach Jamaica due to: the satellite “footprint”, that is, its signal is not confined within a boundary; broadband users evading blocking and geo-security measures; and, mobile signals overlapping territorial boundaries. They considered that the owner ought not to be liable for a breach of the exclusive licence if this occurred. It does not detract from the licencee's right to exclusitivity and to enforce that right, in the licensed territory, against those who broadcast the programme without permission.
The Defendant also submitted, and I suppose it is an alternative argument, that their broadcast was authorised. The Defendant put in documentation which purported to establish that they had permission to broadcast the IAAF Diamond League. These documents were disclosed in the course of the trial and were admitted by consent. They were:
Exhibit 9; Letter dated 6 th June 2005 Santastic Cable Systems Ltd to Broadcasting Commission of Jamaica.
Exhibit 10: Letter dated 6 th June 2005 Santastic Cable Systems Ltd to CEO of Linscom Network Ltd.
Exhibit 11: Customer Information Form Exhibit 12: Signal Launch Form Exhibit 13: WTBJ – NBC Miami Signal Launch Commitment Form Exhibit 14: Invoices from Lora Communications Inc to Santastic Cable Systems Ltd
(a) 20 th April 2018
(b) 1 st May 2018
These documents represented to the Broadcasting Commission, and established, that the Defendant had authority to transmit the feed from a certain network. This feed was received via satellite. The Defendant therefore urged the court to conclude that since the IAAF broadcast came over that network, the Defendant was authorised to broadcast it. In consequence there was no breach of the Claimant's copyright.
This limb of the Defence fails because the evidence establishes that there is a distinction between the network rights, the satellite feed rights and the programming rights. In other words a right to broadcast a network does not necessarily include a right to the programmes in that network's feed. The Defendant's witness, Mr. Schleifer, underscored this,
“Q: The arrangement Linscom has with Santastic is for down link?
A: To receive.
Q: Isn't it true in course of that arrangement from time to time you have access to U.S. channels?
A: Yes.
Q: Even when access to those channels are there times you are required to block access because the programme is owned by someone.
A: Yes you request by letter”
The Defendant's second witness, Mr. Christopher McCatty, also underscored the point,
“Q: Over the years you are aware that programme owner is different from the network owner?
A: In some case. In some cases, but three different categories. Content providers, network/channel owners and satellite providers. Sometimes all three the same. Sometimes two, the content and network owners are the same, sometimes network owner and satellite are the same.
Q: You agree Diamond League all three are different?
A: Having seen the evidence posited by TVJ, I can say yes.”
The net effect of the evidence is therefore that the Defendant may have had permission to broadcast certain networks or channels. There is however no evidence that the Defendant had permission to...
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