Connect TV Pty Ltd v All Rounder Pty Ltd (No 5)
[2016] FCA 338
•8 April 2016
FEDERAL COURT OF AUSTRALIA
Connect TV Pty Ltd v All Rounder Pty Ltd (No 5) [2016] FCA 338
File number: VID 768 of 2010 Judge: TRACEY J Date of judgment: 8 April 2016 Catchwords: INTELLECTUAL PROPERTY – copyright – alleged infringement of applicants’ copyright subsisting in Russian-language television channels by communication of the television channels to the public – whether copyright subsists in the broadcasts of content on the Russian-language television channels – meaning of “television broadcast” under Copyright Act 1968 (Cth) – whether first applicant held exclusive licences from each of the Russian broadcasters – whether communication to the public done without licence of the Russian broadcasters – whether conduct of respondents amounted to primary or secondary infringement of copyright
EVIDENCE – hearsay and opinion evidence – admissibility of correspondence from the Russian broadcasters concerning the rights of the licensees – whether correspondence admissible under s 66A of the Evidence Act 1995 (Cth) on the basis of contemporaneous statements about the Russian broadcasters’ state of mind – whether correspondence admissible under s 79 of the Evidence Act 1995 (Cth) as expert opinion evidence
Legislation: Broadcasting Services Act 1992 ss 6, 6(c)
Copyright Act 1968 (Cth) ss 10, 14(1)(a), 22(5), 22(6), 87, 91, 95(1), 99, 101, 115(4), 119
Copyright (International Protection) Regulations 1969 (Cth) regs 3(1), 4(6)
Evidence Act 1995 (Cth) ss 59(1), 62, 66A, 76, 76(1), 79
Cases cited: Acohs Pty Ltd v Ucorp Pty Ltd (2012) 201 FCR 173 – cited
Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 – cited
IBCOS Computers Limited v Barclays Mercantile Highland Finance Limited [1994] FSR 275 – cited
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd & Ors (2004) 218 CLR 273 – distinguished
TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2001) 108 FCR 235 – cited
University of London Press Limited v Universal Tutorial Press Limited [1916] 2 Ch 601 – cited
Silvera v Savic (1999) 46 NSWLR 124 – cited
Odgers S, Uniform Evidence Law (11th ed, Thomson Reuters, 2014) Date of hearing: 24, 26 November 2014 and 5 February 2015 Registry: Victoria Division: General Division National Practice Area: Intellectual Property Sub-area: Copyright and Industrial Designs Category: Catchwords Number of paragraphs: 142 Counsel for the Applicants: Mr C Golvan QC and Mr S Rebikoff Solicitor for the Applicants: Lloyds & Barclay Lawyers Counsel for the First, Tenth, Eleventh and Eighteenth Respondents: Mr A Muller Solicitor for the First, Tenth, Eleventh and Eighteenth Respondents: Geoff Dillon & Co Commercial Lawyers Counsel for the Eighth, Ninth, Twelfth and Fifteenth Respondents: The Eighth, Ninth, Twelfth and Fifteenth Respondents did not appear. ORDERS
VID 768 of 2010 BETWEEN: CONNECT TV PTY LTD ACN 119 901 932
First Applicant
NTV HUNGARY COMMERCIAL LIMITED LIABILITY COMPANY
Second Applicant
OJSC NTV BROADCASTING COMPANY (and others named in the Schedule)
Third Applicant
AND: ALL ROUNDER INVESTMENTS PTY LTD ACN 064 031 714
First Respondent
ANATOLI ROUBINCHTEIN
Eighth RespondentRUSSIAN TV 4 U CO (and othersnamed in the Schedule)
Ninth RespondentJUDGE:
TRACEY J
DATE OF ORDER:
8 APRIL 2016
THE COURT ORDERS THAT:
1.On or before 22 April 2016 the parties confer and file orders giving effect to these reasons for judgment.
2.In the event that the parties are not able to agree on such orders each party file and serve the orders which he, she or it proposes should be made together with supporting submissions (of no more than three pages).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
TRACEY J:
There are, in Australia, a considerable number of Russian speakers who wish to be able to view Russian language television programmes which emanate from within the Russian Federation. The principal applicant (“Connect TV”) and the principal respondent (“All Rounder”) and their associates have sought to satisfy this demand. Connect TV claims to hold exclusive licences to broadcast particular Russian language programming in Australia. It claims that All Rounder has infringed its copyright in these programmes by making them available online.
The relevant Russian language programmes originate in the Russian Federation. The video images are broadcast using set frequencies and they are available to be viewed by anyone who has the necessary equipment to receive and view the programmes. For most viewers outside the Russian Federation (and certainly those who are as far away as Australia) the programmes are sent and received using satellite transmission. Connect TV claims the exclusive rights to make the satellite transmissions available to Australian viewers.
At some point after the initial transmission of the signal within the Russian Federation an organisation identified as Kartina TV intercepts the broadcast of the programming and converts the signals into digital content. That content is then stored on Kartina’s computer servers and made available, for a fee, for communication over the internet. A person in Australia who wishes to receive the internet transmission needs a set-top box which facilitates access to Kartina’s computer servers which are located outside of Australia. The Australian viewer obtains access to the programming by use of signal codes. Once the code is entered the viewer is able to nominate particular programmes which he or she wishes to watch. The set-top box then requests a video stream from the relevant server. The server responds by providing the programming online to the set-top box. The transmission from the server is then decoded by the set-top box and transferred to the television screen. All Rounder and individuals associated with it have entered into arrangements with Kartina and Australian residents pursuant to which they facilitated access, by Australian viewers, to Kartina’s online stream. This was done by the provision, for a fee, of set-top boxes and access codes to prospective viewers.
The applicants contended that All Rounder and some individual respondents had each directly infringed, or otherwise authorised the infringement of, the copyright subsisting in the broadcasts of programmes shown on the Russian channels. The infringement was said to have occurred by the communication to the public of the same programmes through Kartina’s online facilities.
THE PARTIES
As already noted the principal applicant was Connect TV. The other five applicants were the companies who produced the television programmes and with whom Connect TV claimed to have commercial arrangements pursuant to which it had the exclusive right to rebroadcast the programmes in Australia.
The sole director of All Rounder at relevant times was Ms Leonora Lurie.
At trial the applicants only sought orders against the first, tenth, eleventh and eighteenth respondents who were, respectively, All Rounder, Ms Lurie, Mr Yuri Grinberg and Mr Vladimir Grinberg.
RELIEF SOUGHT
In their amended application (to the extent that it is pressed), the applicants sought:
(1)a declaration that All Rounder, Ms Lurie, Mr Yuri Grinberg and Mr Vladimir Grinberg had infringed the applicants’ copyright in the applicants’ Russian-language television channels by communicating to the public, or otherwise authorising, directing, procuring or being directly or indirectly involved in the communication to the public, of the applicants’ channels without the licence of the applicants;
(2)an injunction permanently restraining these respondents, whether by themselves or by their servants or agents or howsoever otherwise, from communicating to the public, or otherwise authorising, directing, procuring or being directly or indirectly involved in the communication to the public, of the applicants’ channels without the licence of the applicants;
(3)an order requiring these respondents to take all necessary steps to disable access by customers in Australia to any service provided by or associated with them which is involved in the communication to the public, of the applicants’ channels without the licence of the applicants;
(4)delivery up on oath to the applicants or an order for destruction under the supervision of the applicants of any document or thing in the possession, custody, power or control of these named respondents which is involved in or associated with the communication to the public of the applicants’ channels without the licence of the applicants.
(5)damages, including additional damages under s 115(4) of the Copyright Act 1968 (Cth) (“the Act”) and aggravated or punitive damages at common law;
(6)an account of profits;
(7)interest; and
(8)costs.
THE EVIDENCE
The applicants relied on the affidavits of:
·Mr Eduard Volchek, an employee of Connect TV responsible for supervising Connect TV’s call centre activities and one of the officers responsible for the conduct of the litigation;
·Ms Tatyana Volchek, Mr Volchek’s wife who obtained services from All Rounder using a pseudonym in September 2010 and witnessed Mr Vladimir Grinberg’s installation of the Kartina TV service in Ms Sophie Yuhanov’s home in January 2011;
·Ms Sophie Yuhanov, a relative of an employee of Connect TV who arranged for the installation of the Kartina TV service in her home in January 2011;
·Mr Dmitry Shtifelman, the applicants’ solicitor in the proceeding;
·Mr Evgeny Yakovich, Director of Inter TV, which produces and distributes Russian language TV channels. His evidence concerned the location from which the television broadcasts at issue in the proceeding are produced and transmitted;
·Mr Dmitry Seregin, partner of a Russian-based law firm who provided an expert opinion in relation to the entitlement of the Russian broadcasters to broadcast the Russian television programmes under the laws of the Russian Federation; and
·Mr Leonid Milmeister, Mr Volchek’s mother’s partner who had arranged a connection to the Kartina TV service in July 2013.
The applicants also relied on the following affidavits filed on behalf of the respondents:
·Ms Lurie;
·Mr Vladimir Grinberg; and
·Mr Yuri Grinberg.
Mr Volchek was cross-examined about his knowledge of the terms of the licencing agreements with alleged copyright holders, which purported to grant Connect TV an exclusive licence to rebroadcast the Russian language programmes.
Mr Milmeister was cross-examined about his dealings with some of the respondents relating to the installation of the Kartina TV service in suburban homes.
The applicants’ other witnesses were not cross-examined.
The respondents relied on affidavits sworn by:
·Mr Yuri Grinberg; and
·Mr Michael James Carmody, a network engineer, who provided two expert reports commissioned by the respondents.
Mr Grinberg was cross-examined. Mr Carmody was not.
COMMON GROUND
The parties agreed that:
·The relevant Russian language television programmes were broadcast on channels known as “NTV”, “NTV World”, “Channel One”, “Channel One Worldwide”, “Dom Kino”, “Vremya”, “Russia 1” and “RTR Planeta”.
·Each of these channels was broadcast from the Russian Federation.
·The Russian Federation was a “Rome Convention” country.
·Each of the relevant broadcasts was made by a Russian broadcaster which was entitled to make the broadcast pursuant to the laws of the Russian Federation.
·Each of the Russian broadcasters was a body corporate that had its headquarters in the Russian Federation.
·The use of the Kartina service by customers in Australia involved the communication to the public in Australia of the content of the relevant channels.
·All Rounder and Mr Vladimir Grinberg had, at various times, engaged in the business of providing customers in Australia with set-top boxes, signal codes and passwords that enabled customers to access the Kartina service and had assisted customers to set up and maintain such access.
THE ISSUES FOR DETERMINATION
The parties were in substantial agreement as to the issues which fell for determination by the Court. They are:
·Whether copyright subsists in the broadcasts of the content on the relevant channels. The answer to this question depends on whether the broadcasts are “television broadcasts” within the meaning of the Act.
·Whether Connect TV held exclusive licences from each of the Russian broadcasters and was the exclusive licensee in respect of the broadcasting, in Australia, of the content of the relevant channels.
·Whether the communication to the public in Australia of the content of the relevant channels through the Kartina service was done without the licence of the Russian broadcasters.
·Whether the respondents’ conduct involved a communication to the public in Australia of the content of the relevant channels or the authorisation, by them, of such communication.
·Whether Mr Yuri Grinberg was liable for any infringement of Connect TV’s copyright.
The original defence included a cross-claim against Connect TV for unjustified threats. The amended defence ultimately relied upon by the respondents did not include the cross-claim. The cross-claim was not pressed at trial.
THE LEGISLATION
In order to understand how argument was developed in relation to the various issues it is necessary first to notice a number of provisions of the Act.
Section 91 provides that “copyright subsists in a television broadcast or sound broadcast made from a place in Australia by”, or inter alia, “under the authority of a licence … under the Broadcasting Services Act 1992”.
A “television broadcast” is defined, in s 10, to mean “visual images broadcast by way of television, together with any sounds broadcast for reception along with those images.” “Broadcast” is defined to mean “a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992.”
Until 1992 the Act did not provide protection for broadcasts which were not made within Australia. The position changed when Australia became a signatory to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations which was done at Rome on 26 October 1961. This Convention became known as “the Rome Convention”. The change was effected by the promulgation of regulations made under the Act.
Regulation 4(6) of the Copyright (International Protection) Regulations 1969 (Cth) (“the Regulations”), provided that television broadcasts, made after 1 January 1992 by a “relevant broadcaster” from a place in a Rome Convention country, attracted the same protections as domestic television broadcasts enjoyed under s 91 of the Act. A “relevant broadcaster” was defined to mean a person who was entitled, under the law of the country from which the television broadcast originated, to make that broadcast and is, when the broadcast is made, a person resident in, or a body corporate that has its headquarters in, that country: see reg 3(1).
By s 99 of the Act the maker of a television broadcast is deemed to be the owner of any copyright subsisting in that broadcast. Section 22(5) deems a broadcast to have been made by the person who provided the broadcasting service by which the broadcast was delivered. The definition of “broadcasting service” is to be found in s 6 of the Broadcasting Services Act 1992 (Cth). It defines such a service as one “that delivers television programmes”, but the definition is subject to certain exceptions. One of those exceptions is “a service, or class of services, that the Minister determines, by notice in the Gazette, not to fall within [the] definition”: see s 6(c). On 27 September 2000 the Minister made a determination which excluded from the definition “a service that makes available television programs or radio programs using the internet.”
Under s 87 the owner of the copyright in a television broadcast has the exclusive right to do a number of things including rebroadcasting the broadcast or the communication of it to the public other than by broadcasting it. “Communicate” is defined in s 10 to mean “make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise).”
By s 22(6) a communication other than a broadcast is taken to have been made by the “person responsible for determining the content of the communication.”
Section 101 provides that a person infringes copyright by doing or authorising the doing of any act comprised in the copyright without the licence of the owner of the copyright.
Section 119 provides that, except as against the owner of the copyright, an exclusive licensee has the same rights of action as he or she would have, and is entitled to the same remedies as he or she would be entitled to, by virtue of the Act, as if the licence had been an assignment.
The infringing act need not involve the reproduction of the whole of a television broadcast. Section 14(1)(a) provides that, subject to any contrary intention, “a reference to the doing of an act in relation to a work or other subject-matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject-matter …”.
SUBSISTENCE OF COPYRIGHT
The respondents submitted that the applicants had failed to prove that copyright subsisted in the broadcast of the material which was transmitted on the relevant channels. This, so it was contended, was because the continuous broadcast of the sound and visual content of a television channel is not capable of constituting a “television broadcast” as defined by the Act.
The respondents argued that the term “television broadcast” was to be understood as referring to “programs” and did not protect the applicants’ television channels which were an “unbroken and unending continuum” of images which included advertising.
The respondents sought to support these contentions by reference to the High Court’s consideration of the meaning of “television broadcast” in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd & Ors (2004) 218 CLR 273 (“Network Ten”). The Nine Network had complained that Network Ten had infringed its copyright by re-broadcasting some 20 short extracts, taken from programmes broadcast by the Nine Network, in a programme called “The Panel”. Conti J, in this Court, had held that there had not been any breach of the Nine Network’s copyright because the extracts, broadcast by the Ten Network, had not, in each case, constituted the whole or a substantial part of any of the Nine Network’s television broadcasts from which they had been extracted. Conti J’s judgment was set aside by a Full Court but restored on appeal by the High Court. In dealing with the meaning of “television broadcast” in the Act and submissions by the Nine Network that it enjoyed copyright protection in each and every image appearing in its programmes the majority (McHugh A-CJ, Gummow and Hayne JJ) said, (at 302-3) that:
“There can be no absolute precision as to what in any of an infinite possibility of circumstances will constitute a “television broadcast”. However, the programmes which Nine identified…answer that description. These broadcasts were put out to the public, the object of the activity of broadcasting, as discrete periods of broadcasting identified and promoted by a title, such as The Today Show, Nightline, Wide World of Sports, and the like, which would attract the attention of the public.
However, Conti J was, with respect, correct in adding, with reference to Copinger and Skone James on Copyright, that:
‘Television advertisements should be treated as discrete television broadcasts, particularly since ‘A television or cinema commercial is typically the product of the creative and administrative work of many separate individuals’…I would reject Ten’s submission that because advertising is the ‘life blood’ of commercial television broadcasting, it is ‘impossible for [Nine] to avoid the conclusion that these advertisements are part of that programme’.’
His Honour added:
‘Moreover, where a given programme divides into segments, it may be legitimate in the facts of a given case to use a segment of a programme for measurement of the television broadcast, rather than the whole of the programme.’
We would reserve consideration of that proposition for a particular case where the point arises. However, the circumstance that a prime time news broadcast includes various segments, items or ‘stories’ does not necessarily render each of these ‘a television broadcast’ in which copyright subsists under s 91 of the Act.”
The respondents submitted that the equating of a “television broadcast” with a program was also consistent with the temporal limits imposed on the protection of such broadcasts. In this context they drew attention to s 95(1) of the Act which provides that: “Copyright subsisting in a television broadcast…by virtue of this Part continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the broadcast was made.”
The questions which fell for determination in Network Ten differed materially from those raised in the present proceeding. The Nine Network was not seeking to defend its copyright in the whole of its broadcasting. Its application to this Court was for an injunction restraining Network Ten from rebroadcasting, on “The Panel”, the substantial part of any television broadcasts by the Nine Network without that network’s consent. It was asserting a breach of copyright over a series of segments, none of which exceeded a minute in length, which had been drawn from individual programmes of much greater length and then rebroadcast on “The Panel”. Because of the qualifying provision of s 14(1)(a) of the Act an infringement would only have occurred if Network Ten had rebroadcast the whole or “a substantial part” of the relevant subject matter. The High Court was concerned to determine what that subject matter was in order to form a judgment as to whether or not the Ten Network had rebroadcast a substantial part of it.
In dealing with this issue the majority cautioned against any literal application of the dictum of Peterson J, in University of London Press Limited v Universal Tutorial Press Limited [1916] 2 Ch 601 at 610. His Lordship had applied “the rough practical test that what is worth copying is prima facie worth protecting.” Their Honours quoted with approval the observation of Jacob J in IBCOS Computers Limited v Barclays Mercantile Highland Finance Limited [1994] FSR 275 at 289 that Peterson J’s aphorism “proves too much” because if “taken literally, [it] would mean that all a plaintiff ever had to do was to prove copying” so that “appropriate subject matter for copyright and a taking of a substantial part would all be proved in one go” (at 289). Their Honours continued (at 289-90):
“Where the ‘subject-matter’ of copyright protection is of an incorporeal and transient nature, such as that involved in the technology of broadcasting, it is to be expected that the legislative identification of the monopoly (eg, by s 87) and its infringement (eg, by s 101) of necessity will involve reference to that technology. But that does not mean that the phrase ‘a television broadcast’ comprehends no more than any use, however fleeting, of a medium of communication. Rather, as the Gregory Report indicated, protection was given to that which had the attribute of commercial significance to the broadcaster, identified by the use of the term ‘a broadcast’ in its sense of ‘a programme’.”
Network Ten does not stand for the proposition that copyright will not subsist in a broadcast comprised of an aggregation of programs on a particular channel. As is evident from the reasoning of the majority, the High Court was responding to the case which had been presented by the Nine Network. The Network was seeking to protect what it said was its copyright in segments of identified programmes. It is, therefore, hardly surprising that the Court would treat the individual programmes as broadcasts when deciding whether the segments constituted a substantial part of the subject matter of the programme. The majority left open the possibility that in some circumstances discrete parts of a programme might constitute a broadcast. The Court was not called on to determine whether or not a series of programmes, broadcast one after the other in the course of a day could individually or collectively be regarded, for the purposes of the Act, as a “television broadcast”.
The applicants submitted that the broadcast of individual programmes over a 24 hour period could properly be characterised as a series of broadcasts or a single broadcast. The latter alternative does not sit comfortably with the reasoning of Conti J in Network Ten (see at (2001) 108 FCR 235 at 270-273) and, in particular, his Honour’s reference (at 271) to the legislative purpose of the television broadcast copyright provisions in the Act which were directed to protecting the broadcaster’s “programme” or “programmes”. It is not necessary, for present purposes, to consider the issue any further because the applicants seek to assert copyright protection over each and every programme or segments of programmes emanating from the Russian broadcasters. Each programme is a “television broadcast” within the meaning of the Act.
The Russian broadcasters owned the copyright subsisting in their broadcasts: s 91 of the Act; s 4(6) of the Regulations. The next question is whether, in each case, they had granted Connect TV an exclusive licence to rebroadcast the programmes in Australia. There is a related question, namely, whether Connect TV and the other applicants have established that Kartina did not hold copyright in the programming which it made available, through the respondents (or some of them), to Australian viewers using the internet.
DID CONNECT TV HOLD EXCLUSIVE LICENCES FROM RUSSIAN BROADCASTERS?
The applicants bore the onus of establishing that Connect TV held exclusive copyright in the Russian language programming. Connect TV claimed to hold, at all material times, exclusive licences to broadcast the Russian language programmes in Australia. The respondents contested this proposition. They contended that Connect TV had failed to establish that it held any or some of the licences which it claimed to hold.
It was common ground that the applicants also bore the onus of proving infringement of their claimed copyright in the Russian language broadcasts: see Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 at 94-5; Acohs Pty Ltd v Ucorp Pty Ltd (2012) 201 FCR 173 at 202.
Connect TV’s claims to exclusive copyright relied on what it said were licencing agreements with copyright holders to rebroadcast NTV World, Channel One Worldwide and RTR‑Planeta programming. It is notable that, in none of these agreements, is the licensor “the relevant broadcaster” for the purpose of reg 4(6) of the Regulations.
It is necessary that each of these licencing agreements should be examined with a view to determining whether the party granting the licence was the holder of the copyright in the programmes and whether, on their terms, they conferred on Connect TV the exclusive rights for which the applicants contend.
NTV World
The licence agreement on which the applicants relied in relation to NTV World telecasts was made on 1 January 2007 and was amended on 31 December 2009, 30 December 2010 and 14 October 2013. The agreement was made between NTV Hungary Commercial Limited Liability Company (“NTV Hungary”), the second applicant, and Connect TV.
The agreement granted the following rights:
“[NTV Hungary] hereby grants to [Connect TV] the exclusive right to distribute, including the right to conclude with Sub-Licensees sub-license agreements on distribution of the Channel via Sub-Licensees’ Cable Networks during the Term and within the Territory the Channel by authorized Means.”
The original agreement was stated to be effective from 1 January 2007 to 31 December 2009.
The “authorized means” were defined as “pay cable and satellite television systems DBS, DTH, SMATV, CATV and IPTV”.
The “Territory” was defined as “the geographic boundaries of Australia and New Zealand, their territories and possessions.”
The 2009 amendment extended the agreement’s term to 31 December 2010 and amended the definition of “authorized means” to “pay cable and satellite television systems DBS, DTH, SMATV, CATV, and all other electromagnetic communications systems that make NTV Mir signal accessible within the Territory.”
The 2010 amendment extended the agreement’s term to 31 December 2011 and amended the definition of “authorized means” to “pay cable and satellite television systems DBS, DTH, SMATV, CATV, IPTV within the Territory”.
The 2013 amendment extended the agreement’s term to 31 December 2013.
The respondents submitted that NTV Hungary could only give to another the rights that it had. The respondents contended that the applicants had failed to establish what rights the original broadcaster OJSC NTV Broadcasting Co (“NTV Russia”) had licenced or assigned to NTV Hungary.
Connect TV relied on letters purportedly from NTV Russia and NTV Hungary to Mr Dmitry Shtifelman. The first letter from Mr Csaba Biro, Managing Director, NTV Hungary, to Mr Shtifelman was dated 15 April 2011 and stated:
“Please be advised that the rights owners for distribution of the TV channel ‘NTV‑World’ worldwide, excluding the territory of the Russian Federation, are NTV World Ltd., a legal entity under the legislation of the Republic of Cyprus, and NTV Hungary Kft., a legal entity under the legislation of the Republic of Hungary.
The rights for the use of the works constituting the broadcast structure of the Russian TV channel ‘NTV’ within the TV channel ‘NTV-World’, are granted by OJSC ‘NTV Broadcasting company’ to NTV World Ltd, on the basis of the license agreement, and then sublicensed by NTV World Ltd. to NTV Hungary Kft. on the basis of the sublicense agreement.
The exclusive right for transmission and promotion of the TV channel ‘NTV-World’ on the territory of Australia and New Zealand is granted by NTV Hungary Kft. to Connect TV Pty Ltd.
On the basis of the aforesaid, distribution of the TV channel ‘NTV-World’ on the territory of Australia and New Zealand by third persons is illegal.”
The second was dated 22 April 2011. It was from VM Kulistikov, the general director, of NTV Russia. It was addressed to Mr Shtifelman. It read:
“OJSC ‘NTV Broadcasting Company’ hereby notifies you that it is the holder of rights to all works constituting the broadcasting schedule of NTV television channel (hereinafter referred to as the ‘TV channel’).
OJSC ‘NTV Broadcasting Company’ broadcasts on the TV channel in the territory of the Russian Federation in compliance with the laws of the Russian Federation.
OJSC ‘NTV Broadcasting Company’ has granted to NTV World Ltd (the Republic of Cyprus) an exclusive license to use the works, constituting the broadcasting schedule of the TV channel, as part of the NTV World channel. This channel is distributed all over the world except the Russian Federation.
In its turn NTV World Ltd. has sublicensed NTV Hungary Kft. (Hungary) to distribute the NTV World channel throughout the world except the Russian Federation.
Consequently, distribution and broadcasting of the TV channel without prior consent of OJSC ‘NTV Broadcasting Company’ in the territory of any country of the world is considered illegal and infringing the rights of OJSC ‘NTV Broadcasting Company’.
Any distribution of the NTV World channel outside the Russian Federation, namely in Australia and New Zealand, can be possible only upon entering the license agreement with NTV Hungary Kft (Hungary).”
The respondents objected to the admissibility of the letters on the basis that they were hearsay, vague and unreliable. They contended that, in any event, the letters did not support the applicants’ claim that NTV Hungary had an exclusive licence from NTV Russia.
The applicants submitted that the letters were directly relevant to the question of whether Connect TV held the exclusive rights from the broadcasters and were admissible under s 66A of the Evidence Act 1995 (Cth) (“the Evidence Act”) because they were contemporaneous statements about the state of mind of the Russian broadcasters in relation to the rights of their licensees.
Section 66A of the Evidence Act provides for one of a number of exceptions to the hearsay rule. The exception covers “evidence of a previous representation made by a person if the representation was a contemporaneous representation” about various matters including the “state of mind” of the person making the representation.
Section 66A is qualified by the provisions of s 62 which provides that:
“(1)A reference in this Division (other than in subsection (2)) to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
(2)A person has personal knowledge of the asserted fact if his or her knowledge of the fact was or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(3)For the purposes of section 66A, a personal knowledge of the asserted fact if it is a fact about the person’s health, feelings, sensations, intention, knowledge or state of mind at the time the representation referred to in that section was made.”
As a result of these qualifications the exceptions to the hearsay rule, provided for in s 66A and other relevant provisions, only operate in respect of what has been described as “first‑hand hearsay”. The exception allows first-hand hearsay evidence to be adduced with a view to establishing the existence of a relevant fact or facts.
In dealing with s 62 Odgers in Uniform Evidence Law (11th ed, Thomson Reuters, 2014) identified its purpose and effect (at 268) as follows:
“Under [s 66A], the hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the persons health, feelings, sensations, intention, knowledge or state of mind. The intention behind s 62(3), in combination with s 62(1), is to ensure that s 66A applies only to first-hand hearsay.”
He further observed (at 267) that:
“Evidence of a previous representation by A that fact X occurred, where A had personal knowledge (as defined) of the fact, is first-hand hearsay that X occurred. Evidence of a previous representation by A that B said X occurred (where B had personal knowledge of the fact) is second-hand hearsay that X occurred.”
The letters were exhibited to an affidavit which was sworn by Mr Shtifelman. He annexed the two letters to his affidavit without proffering any explanation as to the circumstances in which they came into existence or into his possession. They were sent to Mr Shtifelman after the present litigation had commenced. I readily infer that Mr Shtifelman had asked for the letters to be prepared and sent to him in an attempt to fill a gap in Connect TV’s legal case. Each contains a series of representations of fact and opinion. As I understood the applicants’ case, they relied on the letters to establish the existence, terms and legal effect of the intermediate agreements which were not in evidence.
Issues thus arise as to whether any or all of the contents of the letters may fall within the exception provided for in s 66A. They will only do so if they constitute first-hand hearsay and are contemporaneous in the necessary sense. Insofar as the letters express opinions other issues arise under ss 76 and 79 of the Evidence Act.
Mr Shtifelman does not assert that he has personal knowledge of the matters which are dealt with in the two letters. The representations in the letters are the representations of the authors who, at least to the extent that the representations relate to facts, such as where in the world programmes are distributed, may be assumed to be matters within the personal knowledge of the respective authors. Mr Shtifelman can thus be seen to be giving evidence that the authors, who had the relevant personal knowledge, had represented that certain facts existed. The contents of the letters, about which Mr Shtifelman gave evidence, thus constitute, at best for the applicants, second-hand hearsay. They are not rendered admissible by s 66A of the Evidence Act.
Section 66A provides that a representation may be admissible if it was a “contemporaneous representation” about the state of mind of the person making it. This begs the question: contemporaneous with what? The answer, in general terms, is: contemporaneous with the act to which the representation relates and which it is sought to establish.
In a general sense the representations in the letters may be regarded as “contemporaneous” with the dispute which underpins the present litigation. This is not, however, the type of contemporaneity with which the res gestae exceptions to the hearsay rule, on which s 66A is based, are concerned. Statements of intent and purpose at the time of signing a document may be admissible under s 66A (cf Silvera v Savic (1999) 46 NSWLR 124 at 127-8, 135) but statements of advice about the meaning and effect of contracts, entered into years before, can hardly be regarded as contemporaneous for present purposes: they go no further than expressing the opinions, of the authors, in 2011, about the legal effect of the agreement entered into in 2007 to which Connect TV was a party when read with the sub-licensing agreements which preceded it.
Section 76(1) of the Evidence Act provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.” There are certain exceptions to this general proscription. One of them, provided for in s 79, is that the rule does not apply to evidence of an opinion proffered by a person who “has specialised knowledge based on the person’s training, study or experience” and is wholly or substantially based on that knowledge.
According to the letters their authors held senior management positions in foreign companies which are parties to contractual arrangements about which they express opinions. The applicants, however, did not adduce any evidence of the authors’ expertise such as to engage the exception provided for in s 79.
I would, therefore, uphold the respondents’ objection to the admissibility of the letters. They are not admissible: see s 59(1) of the Evidence Act.
The making of the representations contained in the letters does not, in any event, fill the evidentiary void which results from the failure of the applicants to produce the two intermediate agreements, made between the principal copyright holder, NTV Russia, and NTV World Ltd (“NTV World”) and between NTV World and NTV Hungary.
As a result, Connect TV has failed to establish the subsistence of its claimed copyright in the NTV World programming or that Connect TV enjoys exclusivity in relation to that copyright in Australia.
The respondents advanced some additional arguments relating to the contents of the letters. I will deal with these arguments lest that I be wrong in rejecting their admissibility.
The respondents contended that it should be inferred from the omission, in the first letter, of the word “exclusive” in the description of the licence between NTV Russia and NTV World, or NTV World and NTV Hungary, that the true state of affairs was that there was not an exclusive licence between NTV World and NTV Hungary. The respondents urged the Court to further infer, from the absence of evidence on behalf of NTV Russia, NTV World or NTV Hungary, that the evidence from those parties would not have assisted the applicants by throwing doubt on the correctness of the inference open from the facts.
The applicants responded that the fact that the letters did not use the word “exclusive” to describe the grant of rights to NTV Hungary did not support an inference that the grant of rights to NTV Hungary was not exclusive, or that NTV Hungary had purported to grant rights which it did not hold. The letter expressly described the effect of such rights stating that “any distribution” of NTV World outside of the Russian Federation “can be possible only upon entering the license agreement with NTV Hungary”.
It is to be borne in mind that the letters are not the contractual agreements which they identify and purport to summarise. Without access to these intermediate agreements it is not possible for the Court to make a finding about whether or not any rights conferred by these contracts were or were not exclusive. Depending on the context of relevant provisions in the agreements, it may be that, when the full terms are examined, “exclusive” rights might be granted even if that word does not appear in a particular clause. The mere omission of the word “exclusive” from a summary letter does not permit such a finding to be made.
Mention should also be made of one other submission. The respondents asserted that the agreement between Connect TV and NTV Hungary did not deal with internet broadcasting. They referred to evidence given by Mr Volchek under cross‑examination in which he said that that the acronyms contained in the definition of “authorised means” referred to versions of satellite television systems. As a result, so it was said, distribution via the internet did not infringe the exclusive rights asserted by Connect TV.
The applicants submitted that the express reference to “IPTV” in the licence agreement was intended to comprehend cable transmission by means of internet protocol. They contended that the respondents’ suggestion that the distribution of the Kartina TV service via set-top boxes did not fall within the scope of the rights covered by the licence agreement was not supported by the evidence and should be rejected. The applicants asserted, in the alternative, that the distribution clearly fell within the definition of “cable transmission”.
Had it been necessary to do so I would have accepted this latter submission. Before it reached the set-top box the relevant signal would have passed along a cable. Had Connect TV established exclusive copyright in the programming, it would have extended to programming transmitted using this means.
Channel One Worldwide
The Channel One Worldwide licence agreement was made between Channel One Worldwide Network and Connect TV on 1 June 2006.
The term of the agreement was to be from 1 June 2006 to 31 August 2010. The agreement provided for an extension of this period:
“If neither of the Parties notifies the other Party about its intention to terminate this Agreement it will be automatically extended for the subsequent two (2) years under conditions specified in this Agreement (Extended Duration of Contract).”
The agreement granted the following rights:
“[Channel One Worldwide Network] grants [Connect TV] exclusive rights and [Connect TV] undertakes to carry out reception, distribution and broadcasting of Television Channels in permitted ways, including transmission of advertisement. [Connect TV] has no right to sublicense any of the rights granted under this Agreement to any third parties, as well as dispose of rights granted under this Agreement or to provide the signal containing the Television Channels for use by any third parties without the prior written consent of [Channel One Worldwide Network].” (Emphasis added).
The “Television Channels” were defined to mean “Channel One Worldwide Network”, “Dom Kino” and “Vremya”.
The agreement contained a defined term: “Allowed Methods” being “all methods of the TV channels distribution including, without limitation, direct-to-home reception (DTH), multi-channel television systems which are not cable broadcasting systems, cable broadcasting systems, multi-channel multi-point distribution systems (MMDS), satellite master antenna television systems (SMATV), master antenna television systems (MATV), asymmetric digital subscriber lines (ADSL), excluding the Internet network.” (Emphasis added). Counsel for the applicants submitted that “Allowed Methods” should be equated with “permitted ways” in the grant of rights.
The “Territory” to which reference is made at various places in the agreement (but not the grant of rights) was identified as “Australia and New Zealand”.
The respondents submitted that the applicants had failed to establish the precise contractual rights Channel One Russia had licenced or assigned to Channel One Worldwide Network.
The applicants sought to fill this evidentiary lacuna by tendering a letter from the “General director” of “Channel One Russia”, K L Ernst dated 28 February 2011. The letter stated:
“Hereby OJSC ‘Channel One Russia’ informs you of the following:
OJSC ‘Channel One Russia’ is the copyrighter of the Russian version of the TV channel ‘Channel One Russia’. The Russian version of the TV channel ‘Channel One Russia’ is not intended to be distributed on the territory of Australia as well as any other territory besides Russian Federation.
JSC ‘Channel One Russia Worldwide’ is the legal entity duly authorized to combine and distribute the international version of the TV channel ‘Channel One Russia’ ‘Channel One Russia Worldwide’ designed for distribution worldwide including the territory of Australia.
All issues with respect to illegal distribution of the TV channel ‘Channel One Russia’ should be addressed to JSC ‘Channel One Russia Worldwide’ which is in [indistinct] authorized to provide support in resolving the dispute and any necessary documents on its own behalf.”
The letter was annexed to an affidavit sworn by Mr Shtifelman. Mr Shtifelman said nothing about the circumstances in which the letter came to be written and received. I infer that it was provided at Mr Shtifelman’s request.
The respondents objected to the admissibility of the letter on the basis that it was hearsay, vague and unreliable. They further asserted that, in any event, the letter failed to establish that Channel One Russia had given an exclusive licence to Channel One Worldwide Network. The respondents emphasised the omission of the term “exclusive” and the absence of evidence on behalf of Channel One Russia and Channel One Worldwide Network. The respondents urged the Court to find that there was insufficient evidence to establish exclusive rights on the part of Connect TV to the television broadcasts of Channel One Worldwide Network.
The applicants argued that the letter, upon which they sought to rely, was admissible for the same reasons outlined above in relation to the letters relating to NTV World. They submitted that the absence of the word “exclusive” was not determinative and that the letter confirmed that the relevant rights in relation to the broadcast of Channel One Worldwide had been licensed to Channel One Worldwide.
For the reasons already given in relation to the admissibility of the letters upon which the applicants sought to rely in respect of the NTV World licences, I hold that the letter from Channel One Russia is not admissible.
As a result, the applicants have failed to establish the subsistence of Connect TV’s claimed copyright in the relevant programming or that Connect TV enjoys exclusivity in relation to that copyright in Australia.
The respondents further submitted that any agreement between Channel One Russia and Channel One Worldwide Network, on the one hand, and Connect TV on the other, had concluded on 29 February 2012. The respondents referred to a letter from First Channel Worldwide, which was put to Mr Volchek in cross-examination, which said that there had been non-adherence to the terms of the agreement and that Connect TV was not making payment of licence fees. As a result, the letter said, “in accordance to the Additional agreement No. 6, the Licensing period concludes on 29 of February 2012. Further joint venture needs to be filed with a new Agreement and will be on a non-exclusive basis.”
This correspondence suggested that the agreement on which the applicants relied had concluded in February 2012. The continuation of any rights conferred by the agreement would require the entry into a further agreement and that agreement would not confer exclusive rights on Connect TV. No such agreement was in evidence.
Mr Volchek did not dispute that the letter had been received. He maintained, however, that Connect TV had not failed to make required payments for the signal from Channel One and that Connect TV had, after 29 February 2012, continued to pay for, receive and distribute all of the channels in Australia.
It is sufficient, for present purposes, to note the state of uncertainty attending the arrangements pursuant to which Connect TV distributed the Channel One Worldwide programming after 29 February 2012. In particular, it is not possible, on the evidence, to make a finding as to whether or not Connect TV enjoyed any relevant rights or whether any of its asserted rights were held exclusively. Connect TV has, therefore, failed to establish its copyright claims in respect to the Channel One worldwide programming.
For the sake of completeness I should mention that there was a dispute between the parties as to whether any rights conferred by the agreement (as amended) on Connect TV extended to transmission of programmes using the internet. The applicants sought to confine the exclusion of the “internet network” to distribution utilising the worldwide web through a web browser rather than cable transmission by means of an internet protocol through a set-top box. Cable transmission was said to be covered by the “ADSL” allowable method. In the circumstances it is not necessary to resolve this dispute.
RTR-Planeta
The licence agreement in relation to RTR-Planeta was made between Foreign Economic Relations Company Ltd “Sovtelexport”, the branch of Federal Statute Unitary Enterprise “The Russian Television and Radio Broadcasting Company” and Connect TV on 27 August 2012.
The agreement was to operate from 1 July 2012 until 30 June 2015.
The agreement granted the following rights:
“[Foreign Economic Relations Company Ltd] hereby grants to [Connect TV] the exclusive right to exploit and utilize RTR-Planeta in its entirety including Marks and Logos in real-time unabridged without any alterations or modifications including sublicensing to any third party…by means of communicating it to the general public via Cable transmission, IPTV and DTH Satellite Service and other technologically similar methods of distribution.”
The “Territory” in respect of which the rights were granted was the “territory of Australia and New Zealand, where RTR-Planeta is used by communicating it to the general public via Cable transmission, IPTV and (or) DTH Satellite Service”.
“Cable transmission” was defined as:
“Broadcasting technology regarding RTR Planeta:
i. by means of any cable network based on optical fiber, coaxial or other wire or cable;
ii. by means of a network based on a collective reception technology SMATV (Satellite Master Antenna Television) a network based on MMDS (Multichannel Multipoint Distribution System) technology, or any other similar combination of networks and technologies capable of RTR-Planeta distribution to the viewer.
iii. by means of any fixed-line telecommunications system based on DSL (Digital Subscriber Line) ADSL (Asymmetric Digital Subscriber Line) or any other similar technology which is capable, among other things, of high speed digital distribution of the RTR-Planeta via existing telephone lines connected to decoder modem or another similar device.”
“IPTV” was defined as:
“such type of Cable transmission which allows to transmit video and audio signals in real-time in digital format by means of multicast IP stream (including within Closed network) based on TCP IP protocol or analogous technology and distribute such signals to or among head ends for distribution to Subscriber solely through a physical distribution plant (e.g. optical fiber twisted pair, coaxial cable or as combinations), and by which viewers will only be able to receive and view the content on a television monitor with an enabled set-top box cable card or other decoding device that performs the functionality of a set top box.”
The respondents objected that the relationship between “Sovtelexport” and RTR and the rights conferred was unclear and unexplained.
In an effort to deal with this objection the applicants sought to rely on a letter from P. Fedorov, the Director of Foreign Relations of the Federal State Unitary Enterprise the Russian Television and Radio Broadcasting Company (RTR) dated 11 September 2012 to Mr Simon Pinchuk and Mr Gennady Volchek, which read:
“With reference to License Agreement No 346/3000 of August 27, 2012 made between CONNECT TV PTY LTD (with its registered office at Level 15, 10 Queens Road, Melbourne, 3004, Australia) and FERC “Sovtelexport”. Hereby RTR informs you of the following:
CONNECT TV PTY LTD is the only holder of the exclusive right to use RTR-Planeta in Australia and New Zealand by means of communicating it to the general public via Cable transmission, DTH Satellite Service and IPTV.
CONNECT TV PTY LTD is RTR’s exclusive partner in protecting the intellectual rights in relations to RTR-owned television channels including “RTR-Planeta”, “Rossiya-1”, “Rossiya-2” etc. in Australia and New Zealand under the relevant Power of attorney.
Any use of RTR intellectual property other than properly authorized in writing by RTR or CONNECT TV PTY LTD shall be declared illegal, violating the exclusive rights of RTR or its partners and shall be prosecuted under the applicable intellectual property legislation.”
A copy of this letter was annexed to an affidavit sworn by Mr Shfitleman. Mr Shfitleman did not explain the circumstances in which the letter came into existence or was sent. For reasons already given in relation to other similar correspondence I infer that Mr Shfitleman requested RTR to send the letter. In his affidavit Mr Shfitleman said that the letter related “to VGTRK’s rights in the ‘Russia 1’ and ‘RTR Planeta’ channels.” Earlier in his affidavit he deposed that VGTRK (the Sixth Applicant in the proceeding) was “a licensed television broadcaster headquartered in Russia that broadcasts a range of Russian-language pay television channels” including “Russia 1” and “RTR Planeta”.
The respondents objected to the admissibility of the letter on the basis that it was hearsay, vague and unreliable. If admitted, the respondents said that the letter established that the exclusive licence was limited to communication by cable, DHT Satellite Services and IPTV.
The applicants contended that the September 2012 letter confirmed that the grant of the exclusive rights to broadcast RTR-Planeta had been given to Connect TV. They submitted that it was plain, on the face of the agreement, that “Sovtelexport” was not a separate legal entity but was merely a “branch of the Russian State Television and Radio Broadcasting Company”. There was, therefore, so it was contended, no question as to its entitlement to grant the licence.
The applicants argued that the letters were admissible for the same reasons outlined above in relation to the letters relied on to support their claims to copyright in NTV World programming.
For the reasons I have already given, in dealing with those letters, I reject the applicants’ submissions and hold that the September 2012 letter was inadmissible.
I accept the respondents’ submission that Connect TV has failed to establish how the licensor “Foreign Economic Relations Company Limited ‘Sovtelexport’” had authority to grant the licence given that it was not the relevant broadcaster for the purposes of Regulation 4(6) of the Regulations. Connect TV has failed to establish copyright in the programming of a “relevant broadcaster”.
The definition of IPTV, which was an allowable means of transmission of the content to the general public, referred to multicast IP stream. The respondents relied on the evidence of Mr Michael Carmody to the effect that they did not utilise multicast streams when facilitating access to Russian language programming. Rather, they provided or facilitated a unicast stream or transmission to individual end users only when the communications were requested, negotiated and confirmed.
The applicants contested the respondents’ submission that the distribution of the Kartina TV service via set-top boxes did not fall within the definition of IPTV. IPTV was defined, they contended, in terms that made it plain that it encompassed cable transmission by means of internet protocol through a set-top box. They further submitted that, in any event, the respondents’ chosen method of distribution would clearly fall within the definition of “cable transmission”.
Had it been necessary to do so I would have accepted this latter submission. Before it reached the set-top box the relevant signal would have passed along a cable. Had Connect TV established exclusive copyright in the programming, it would have extended to programming transmitted utilising this means.
THE RUSSIAN BROADCASTERS’ COPYRIGHT
The applicants made the alternative submission that, even if they had failed to establish that Connect TV held exclusive rights to the Russian language programming in Australia, the third, fifth and sixth applicants (“the overseas applicants”) held copyright in the relevant programming and were entitled, independently of Connect TV, to obtain relief in the proceeding.
In the applicants’ amended statement of claim it was pleaded that each of the overseas applicants owned the copyright in particular Russian language programming. The respondents pleaded, in their defence, that parts of the relevant claims were embarrassing. Otherwise they denied these claims. As a result it was necessary for the applicants to prove that the overseas applicants were the copyright owners in relation to particular programming.
The applicants relied on the evidence of Mr Seregin, an experienced Russian lawyer, who deposed that the “principal law that governs the broadcast of television programs in Russia is the Federal Law on Mass Media, No. 2124-1 of 27 December 1991”, which required “persons responsible for the dissemination of mass media in Russia (including television programs) [to be] registered with the government in order to carry out their activities…and hold a broadcasting license issued by the relevant government agency, which gives the holder the right to disseminate mass media by means of television or radio broadcasting.”
Mr Seregin identified the Russian Federation agency responsible for the control and supervision in the field of media and mass communications as the Federal Service for Supervision of Communications, Information Technology and Mass Communications, known as ROSKOMNADZOR. ROSKOMNADZOR maintains a register of licensed television broadcasters. Mr Seregin gave evidence that any broadcaster listed in the register is entitled under the laws of the Russian Federation to broadcast the programming content specified in the licence within the Russian Federation.
Mr Seregin deposed that:
“I have reviewed the extracts from the Register of Licences attached to the letter of instruction I have received from Lloyds and Barclay Lawyers. Those extracts appear to me to be licences for the broadcast of the following television channels:
(a) ‘NTV’, which is licensed for broadcast by OJSC NTV Broadcasting Company;
(b) ‘Channel One’ (or ‘First Channel’), which is licensed for broadcast by OJSC Channel One (also known as Channel One Russia);
(c) ‘Vremya’ (or ‘Time’), which is licensed for broadcast by CJSC Channel One Global Network (also known as Channel One Worldwide, a subsidiary of OJSC Channel One);
(d) ‘Dom Kino’ (or ‘Home Cinema’), which is also licensed for broadcast by CJSC Channel One Global Network
(e) ‘Russia 1’, which is licensed for broadcast by FSUE All-Russian State Television and Radio Broadcasting Company; and
(f) ‘RTR-Planeta’, which is also licensed for broadcast by FSUE All-Russian State Television and Radio Broadcasting Company.”
The applicants also relied on the evidence of Mr Evgeny Yakovich, an experienced Russian television producer, who deposed that each of the relevant channels was produced in Russia by the Russian broadcasters.
The respondents asserted that “the applicants must, in order to establish an entitlement under the law of the Russian Federation to make the relevant broadcast, demonstrate that not only was the relevant broadcaster the holder of the appropriate licence or permit issued in the Russian Federation in relation to the relevant television broadcast in question, but also that all of the terms and conditions (if any) upon which the grant of such licence or permit [has] been made, or concerning the exercise of the rights given by such licence or permit, have been complied with.” The respondents also contended, in their opening submissions, that the affidavit material filed by the applicants was “demonstrably lacking in any proper detail about the licences or permits [Connect TV] claims to have held.”
At trial, during the course of opening submissions, counsel for the respondents said that the respondents accepted that, on the evidence of Mr Seregin and Mr Yakovich:
·NTV Russia is entitled to broadcast NTV in the Russian Federation and produces an international version of NTV, known as NTV World.
·Channel One Worldwide is entitled to broadcast Time or Vremya, Dom Kino or Home Cinema.
·Channel One Russia is entitled to broadcast Channel One, or the first channel in the Russian Federation, and produces an international version of that channel known as Channel One Worldwide.
·RTR is entitled to broadcast the channel known as Russia 1 and RTR Planeta and produces an international version of these channels.
The respondents, in their closing submissions, appeared to concede that, subject to the question of whether copyright can subsist in a broadcast of a television channel, as opposed to an individual program, NTV Russia, Channel One Russia and the RTR were the relevant copyright owners.
I am, therefore, satisfied that these applicants were relevant broadcasters for the purposes of reg 4(6) of the Regulations and the holders of copyright, at relevant times, in their television broadcasting. Their copyright has been infringed by the impugned conduct of the respondents.
WHETHER KARTINA HELD LICENCES FROM RUSSIAN BROADCASTERS
As already noted Connect TV claimed that it had been granted a series of exclusive licences to rebroadcast the Russian language programmes in Australia. The licences had been granted by the other applicants. It was implicit in this claim that neither Kartina nor any of the respondents held any equivalent licence. The applicants pleaded that none of the respondents had been “licenced or in any other way authorised directly or indirectly” to communicate the Russian language programming to the public in Australia. The respondents admitted this allegation in their defence but, in submissions, contended that this admission did not go so far as to concede that the Russian broadcasters had not granted Kartina a licence. They did not plead affirmatively the existence of such a licence.
The respondents contended at trial that the applicants had failed to prove that the communication to the public in Australia of the applicants’ channels through the Kartina TV service was done without the licence of the Russian broadcasters.
The applicants accepted that they bore the burden of proving the absence of a licence. They submitted that the evidential burden of establishing the existence of such a licence fell on the respondents and that the respondents had failed to adduce or seek to rely on any evidence which would support a finding that any licence had been granted by the Russian broadcasters to the owners of Kartina TV.
Had the respondents pleaded that they had been granted a licence by one or more of the Russian broadcasters or that such a licence had been granted by the broadcasters to Kartina, the respondents’ contention would carry greater weight. Even then, however, it would have been peculiarly within their power to have adduced evidence about the existence and particulars of any such licence, including the geographical area covered by it: cf Acohs at 202.
The onus which the applicants bore was to be discharged having regard to the whole of the evidence. That evidence included a letter of demand, sent on the instructions of the applicants to the respondents, which stated that the Russian broadcasters “have not authorised any party other than Connect TV to broadcast or otherwise communicate those channels (or their programming content) to the public in Australia”.
The applicants also sought to rely on the letters, set out above at [52], [53], [83] and [100] to their solicitor confirming that the only person authorised to distribute the international version of their channels in Australia was Connect TV. The respondents objected to the admissibility of the letters on the ground that they contained hearsay.
For the reasons I have already given I uphold the respondents’ objections and hold that the letters were inadmissible.
As earlier explained, the evidence relating to the exclusivity of any licences granted to Connect TV is equivocal.
No evidence adduced by the respondents suggested that a licence had been granted by the Russian broadcasters to Kartina. Accordingly, there was no evidence which the Russian broadcasters were required to explain or contradict so as to avoid the drawing of a Jones v Dunkel inference.
There is no basis in the evidence for concluding that the overseas applicants had granted any licence to Kartina to rebroadcast their programmes in Australia.
COMMUNICATION TO THE PUBLIC IN AUSTRALIA
As already noted, s 22(6) of the Act deems a communication, other than a broadcast, to have been made by the person responsible for determining the content of the communication. The applicants contended that the respondents were such persons as a result of their control over the technology through which the Kartina TV service was made available to subscribers.
This control was such as to enable employees of All Rounder to determine what, if any, part of Kartina TV’s service should be made available to consumers in Australia.
These claims were denied by the respondents who submitted that they lacked the power to prevent the primary infringement of any rights held by Connect TV. The servers from which the Kartina service was streamed to Australia were located outside the country. The content of the service was determined by Kartina.
Despite their disavowals the respondent employees of All Rounder did have power to prevent any copyright infringement constituted by facilitating the access of Australian viewers to the Kartina service. This could have been done in a number of ways including the withholding of codes and the disabling of set-top boxes.
It may be assumed, in the respondents’ favour, that Kartina decided which Russian language television programmes were downloaded on to its server or servers which were maintained outside Australia. It was not, however, Kartina which determined what part or parts of that programming were communicated to viewers in Australia. It was All Rounder and those acting on its behalf which effectively decided what, if any, parts of the programming appeared on television screens in Australia. To that extent the relevant respondents determined the content of the relevant communications.
LIABILITY OF YURI GRINBERG
There was no dispute that Mr Yuri Grinberg was actively involved in the business of All Rounder. There was, however, disagreement as to the extent of his involvement and his liability for any proved infringement.
It was common ground that Mr Yuri Grinberg assisted in the installation of set-top boxes in customer’s homes. His involvement extended to participation in the initial discussions concerning the establishment of the Russian TV 4U business and the advertising of that business. He also dealt with customers of the Kartina World business.
Ms Lurie acknowledged that, in October 2009, prior to the establishment of the Russian Internet television business of All Rounder, she and Mr Yuri Grinberg had met with a representative of Russian TV4U to discuss the Russian Internet television business.
Mr Milmeister gave evidence that, in July 2013, he had spoken to Mr Yuri Grinberg on two occasions to arrange for the connection of the Kartina TV service to his home and that Mr Grinberg and Ms Lurie attended his home the following month. Both Mr Yuri Grinberg and Ms Lurie performed work to connect the service. Mr Grinberg had, according to Mr Milmeister, started the installation by checking the speed on his computer and then connecting a console to the television and programming the console to receive the internet TV signal. Mr Milmeister said that it was Mr Yuri Grinberg who provided him with a detailed explanation about how to use the Kartina TV service and how to use the remote control. Mr Grinberg had also provided information on other technical details.
Mr Yuri Grinberg denied that he had spoken to Mr Milmeister on the telephone in July 2013. Mr Yuri Grinberg denied carrying out any installations of internet or any other connections for All Rounder at Mr Milmeister’s residence. He admitted to no more than acting as Ms Lurie’s driver and to carrying things into Mr Milmeister’s home.
I accept Mr Milmeister’s account of the role played by Mr Yuri Grinberg in the installation of the Kartina TV service in his home. He had a clear recollection of events and was not shaken under cross-examination. Mr Grinberg, on the other hand, gave evasive and non-responsive answers to many questions. He clearly sought to minimise any involvement which he had in the process and sought to portray himself as Ms Lurie’s uninformed assistant.
Mr Yuri Grinberg is liable for All Rounder’s infringing conduct to the extent that this involved the provision of access to the overseas applicants’ television programming through the Kartina TV service.
CONCLUSION
I have concluded that Connect TV has failed to make good its claims to ownership of copyright in the Russian language programmes which are the subject of dispute. The overseas applicants have, however, made good their claims against the four respondents, including Mr Yuri Grinberg, against whom they sought relief.
I will direct that the parties bring in orders to give effect to these findings.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 8 April 2016
SCHEDULE OF PARTIES
VID 768 of 2010 Applicants
Fourth Applicant: JSC CHANNEL ONE RUSSIA WORLDWIDE Fifth Applicant: OJSC CHANNEL ONE RUSSIA Sixth Applicant: FSUE RUSSIAN TELEVISION AND RADIO BROADCASTING COMPANY Respondents
Tenth Respondent: LEONORA LURIE Eleventh Respondent: YURI GRINBERG Twelfth Respondent: STANISLAV KOZIN Fifteenth Respondent: VASH TELEKANAL LTD Eighteenth Respondent: VLADIMIR GRINBERG
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