MUNHWA BROADCASTING CORPORATION AND ORS V YOUNG INTERNATIONAL 2009 LIMITED AND ANOR HC AK CIV-2010-404-00203

MUNHWA BROADCASTING CORPORATION AND ORS V YOUNG INTERNATIONAL 2009 LIMITED AND ANOR HC AK CIV-2010-404-00203

The Court finds there are serious questions to be tried that the Baro TV system involves copying by digitisation (s16(1)(a)) and communicating communication works to the public (s16(1)(f)); s43A does not rescue the service as operated; s228 does not apply to World TV because Baro TV customers receive Korean transmissions not World TV's New Zealand rebroadcasts; plaintiff World TV has not proven exclusive licence entitlement under s123; accordingly a conditional interim injunction in favour of the first to third plaintiffs is warranted.

Citation
openlaw-7dd3ffb9_ee3a_4152_914c_27111f29830f.pdf
Parties
First Plaintiff: Munhwa Broadcasting Corporation; Second Plaintiff: Television Broadcast Limited; Third Plaintiff: Korean Broadcasting System; Fourth Plaintiff: World TV Limited; First Defendant: Young International (2009) Limited; Second Defendant: Young Hoon Cho; Second Defendant: Yang Wook Ham
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 December 2010
Procedural Posture
Civil Copyright and Fair Trading Act / Interim Injunction Application (interlocutory)
Outcome
Interim injunction granted in favour of the first to third plaintiffs (MBC, TVB, KBS) on conditions; World TV (fourth plaintiff) not established as exclusive licensee under s123 and s228 remedies not available to World TV in these facts; costs reserved.
Legal Topics
Interim Injunction, Streaming/place Shifting, Communication to the Public, Transient Reproduction (s43 A), Exclusive Licence (s123), Rebroadcasting Apparatus (s228), Statutory Interpretation
Copyright Fair Trading Act Intellectual Property Civil Procedure Technology/it Law Interim Injunction Streaming/place Shifting Communication to the Public +4 more

Case Brief

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Parties

Munhwa Broadcasting Corporation

First Plaintiff

Television Broadcast Limited

Second Plaintiff

Korean Broadcasting System

Third Plaintiff

World TV Limited

Fourth Plaintiff

Young International (2009) Limited

First Defendant

Young Hoon Cho

Second Defendant

Yang Wook Ham

Second Defendant

Procedural Posture

Civil Copyright and Fair Trading Act / Interim Injunction Application (interlocutory)

Legal Issues

  1. 1 Whether defendants copied plaintiffs' broadcasting works (s16(1)(a))
  2. 2 Whether defendants communicated works to the public (s16(1)(f))
  3. 3 Whether transient reproductions are excepted under s43A

Ratio Decidendi

The Court finds there are serious questions to be tried that the Baro TV system involves copying by digitisation (s16(1)(a)) and communicating communication works to the public (s16(1)(f)); s43A does not rescue the service as operated; s228 does not apply to World TV because Baro TV customers receive Korean transmissions not World TV's New Zealand rebroadcasts; plaintiff World TV has not proven exclusive licence entitlement under s123; accordingly a conditional interim injunction in favour of the first to third plaintiffs is warranted.

Court Disposition

Interim injunction granted in favour of the first to third plaintiffs (MBC, TVB, KBS) on conditions; World TV (fourth plaintiff) not established as exclusive licensee under s123 and s228 remedies not available to World TV in these facts; costs reserved.

Orders

  • Defendants, their servants and agents are restrained pending further order from (a) distributing by any means within New Zealand material broadcast by Munhwa Broadcasting Corporation, Television Broadcast Limited and Korean Broadcasting System; (b) advertising, promoting, displaying, offering for sale or otherwise...
  • The orders are conditional on Munhwa Broadcasting Corporation, Television Broadcast Limited and Korean Broadcasting System each filing an undertaking as to damages signed by each company in accordance with High Court Rules r7.54 (facsimile or scanned copies acceptable initially with originals within five working days).