Complaint against Chiu T'ai Technology Co. Ltd. and a Tainan City-based cable broadcasting system operator for jointly cutting off the [broadcast] signals to hotels
Chinese Taipei
Case:
Complaint against Chiu T'ai Technology Co. Ltd. and a Tainan City-based cable broadcasting system operator for jointly cutting off the [broadcast] signals to hotels
Key words:
concerted action, copyright
Reference:
Fair Trade Commission Decision of May 13, 1998 (the 340th Commission Meeting); Letter (86) Kung Yi Tzu No. 8701265-007
Industry:
Broadcast Television Program Providers Industry (8530)
Relevant Laws:
Summary:
The Tainan City Hotel Association sent a complaint of letter alleging the following:
(1) Chiu Tai Technology Co. Ltd. was a program provider. Tainan City-based Greater Tainan Cable Television Broadcast Systems signed a contract with Chiu T'ai providing that programs could only be shown to resident families, or would be construed as a breach of copyright and the [broadcast] signals to the hotels would be cut off.
(2) In the opinions of Copyright Commission of the Ministry of the Interior and the Tainan District Court Prosecutor's Office, programs broadcast by cable television systems shown to hotel guests do not constitute breach of the Copyright Law. The respondents used copyright as a reason to increase the contract price and were suspected of having violated the Fair Trade Law.
According to Article 92 of Copyright Law:
A person who without authorization infringes on the economic rights of another person by means of public recitation, public broadcast, public presentation, public performance, public display, adaptation, compilation, or rent, shall be punished with imprisonment of up to three years, and in addition thereto, may be fined up to NT$150,000.
“Public broadcast” means to communicate to the public the contents of a work through sounds or images by wire, wireless, or other equipment, where such communication is for the purpose of public reception of signals; and, “public presentation” means to use audiovisual devices, or other methods of transmitting images, to communicate the contents of a work to the public at the place of transmission or at a specified place outside the place of transmission, as provided in Article 3 of the Copyright Law. The point of contention in this case is in the Copyright Law regarding the actions of public broadcast and public presentation, and the relationship between cable television broadcast systems and hotels. According to the opinion of Copyright Commission of the Ministry of the Interior, they may be categorized as follows:
Cable television broadcast system operators: Cable television broadcast system operators communicate to the public the contents of a program (including simultaneous broadcast) through sounds or images by wire, wireless or other equipment, where such communication is for the purpose of public reception of signals, which action is "public broadcast" and not "public presentation."
Hotels: Hotels may be categorized as what are known as “public places.” If the programs received at a public place are programs broadcast by a cable television broadcast system and the public place in the process of transmitting does not set up signal receiving equipment for transmission, even if equipment for improving the signal has been installed, since the programs on television in public places are the result of broadcasts by cable television broadcast systems, such public place has not engaged in "public broadcast." As for hotels simply turning on televisions to receive cable television programs for their guests' viewing pleasure, the necessary facilities are also the result of the public broadcasting of cable television programs, and are not “public presentation.”
(2) The above opinions are those presently held by most district courts and prosecutors. Therefore, as noted by the companies involved in this case, broadcast system operators, when broadcasting programs to hotels, because they do not have "other-than-home-use" broadcasting rights (regardless of "public broadcast" or "public presentation"), have many times been determined to have made broadcasts in violation of copyright, and have been prosecuted or have been found guilty. On the other hand, hotels that receive broadcast system programs, however, have possibly been determined to have not made a "public broadcast" or "public presentation," but have only received system signals, and therefore, have not been determined to have violated the Copyright Law. In the instant case, the Tainan City-based system operator, which did not have other-than-home-use rights, was broadcasting programs to the hotels. Possible litigation would come from the [other-than-home-use] rights owners, which are normally the video dealers of specific movies. The dealers would litigate after making [evidentiary] recordings at the hotel. The system operator, because it may have criminal liability, dared not to continue broadcasting.
There are grounds for Chiu T'ai's statement that it did not feel impel to cut off the broadcast signals to the hotels from either the system operators or program sellers. Further, assuming that the hotels themselves were not likely to have violated the law, a request that the system operator must illegally broadcast, or obtain the public broadcast rights, seems to be unreasonable. Therefore, the broadcast system operators’ actions in honoring the "Copyright Law" did not violate the "Fair Trade Law." If the system operator has already signed a broadcasting agreement with hotels and other similar public places but subsequently cut off the broadcast signals to hotels and other similar public places because it did not have the public broadcast rights, it could give rise to an issue of damages derived from breach of contract, which however would be a civil dispute and is not an issue within the scope of the Fair Trade Law.
(3) Regarding whether Chiu T'ai and the Tainan City system operator were involved in a concerted action, although Chiu T'ai signed a so-called "Signal Service Agreement," it only pertains to the services provided by the system operator. Chiu T'ai has no satellite signal transmission and delivery network. The service Chiu T'ai provided was acting as sales agent for the system operators that did have public broadcast rights. The two businesses [Chiu T'ai and Greater Tainan Cable Broadcast Television System] were not overlapping, so there was no competitive relationship and thus no possibility to constitute a concerted action. The price for the service Chiu T'ai provided was, in principle, decided according to supply and demand. Thus, there was no specific evidence to show any violation of the law.
Summarized by P'eng-chi
Supervised by Hsin Chih-chung