19 January 2018
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Copyright owners take legal set-top box sellers to court in unprecedented case

TODAY
12 Jan 2018
Wong Pei Ting

In an unprecedented case, a group of rights owners — including telcos here — have sought a private prosecution against two companies and their directors for selling legitimate set-top boxes which give users unbridled access to copyrighted programmes.

Lawyers whom TODAY spoke to said the criminal case could be a landmark, as it provides an opportunity for the court to clarify its legal positions on the law concerning set-top boxes which do not store or decrypt copyrighted content.

According to the State Courts’ hearing list published on its website, a hearing is scheduled on Friday (Jan 12) where set-top box distributor Synnex Trading and its client, An-Nahl, a wholesale goods retailer located in Tanjong Katong Complex, could become the first Android box sellers to be hauled to court under the Copyright Act.

Synnex Trading director Jia Xiaofeng and An-Nahl director Abdul Nagib Abdul Aziz were named as defendants as well.

Previously, set-top boxes – used to stream movies, television shows or sports programmes – had decoded encrypted broadcasts offered by StarHub. The sale and distribution of these decoders are illegal under the Broadcasting Act.

However, in the past three to five years, new technologies have allowed pirates to circumvent the law, and the set-top boxes nowadays that use apps to stream content do not have decoders and are considered legal.

The court schedule lists Mr Neil Kevin Gane as the complainant. Mr Gane is the general manager of the Coalition Against Piracy (CAP) but TODAY understands he is acting on behalf of four parties, including StarHub. The CAP is not involved in the case.

When contacted, an employee of An-Nahl said the company no longer has set-top boxes on its inventory, and has returned them to Synnex Trading. On Thursday, Synnex was still selling the set-top boxes at S$219 each. Customers also pay S$40 a year as server maintenance fees, and a one-time S$40 charge for on-demand content or television shows.

Intellectual property (IP) lawyers whom TODAY spoke to noted that it is not unusual for IP cases to proceed under private prosecution.

Apart from content producers, rights owners of different industries — such as fashion houses or drinks manufacturers for example — have been known to cooperate with one another to bring prosecution against alleged offenders, said Mr Gilbert Leong, a lawyer from Dentons Rodyk. “It shows that as an industry, they are concerned,” he added.

Between 2008 and 2014, StarHub went after bootleg set-top box sellers who decoded the pay-TV operator’s encrypted broadcast signals and give users free access to channels. Mr Leong noted that these cases circumvented the encryption method, and constituted a clear offence. The latest action against the two companies are different, he reiterated.

Lawyer Bryan Tan of Pinsent Masons added that the case would be the “first of its kind”, and it would be interesting to see “what kind of decision the court arrives at”.

To bring about a private prosecution, the complainants would have to go through a few hurdles, including getting a fiat or a permission from the Attorney-General’s Chambers (AGC), said Mr Leong. They have to show that an offence has been disclosed before prosecution can be brought against the defendants. Lawyer Gino Singh said trademark cases where a company sues another for selling copied goods are usually fought this way as well, starting from a Magistrate’s Complaint. “If a settlement agreement is not entered at the mediation stage, then they will have to frame charges,” he said.

TODAY had reported last month about legal set-top boxes flying off the shelves at Sim Lim Square. This was after the CAP — whose members include major entertainment companies — said the devices facilitate “rampant” piracy in Singapore.

Mr Gane had voiced concerns over the “overt sales” of set-top boxes in malls and IT fairs. This, he said, is rarely seen “in such volume” in other parts of the region. “What are predominantly sold in Sim Lim Square and at Singapore’s many IT exhibitions are illicit streaming devices preloaded with piracy enabling applications. They are not ‘empty’ and therefore ‘legal’ boxes,” he said.

When contacted at the time, the Intellectual Property Office of Singapore (IPOS) reaffirmed its stance on set-top boxes.   

“Our position has not changed. The devices highlighted in (previous media reports on action against set-top box sellers) were designed to decode encrypted broadcast signals, allowing users full access to TV programmes without paying subscription fees. In such a scenario, copyright infringement is an issue as the devices were used in a manner that is illegal,” it said.

CORRECTION: An earlier version of the article said the criminal case proceeded to court after all parties involved could not reach a settlement following the filing of a Magistrate’s Complaint. This is incorrect. The parties did not discuss a settlement at any point in time. We are sorry for the error.

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