Munhwa Broadcasting Corporation v Young International 2009 Limited HC Auckland CIV 2010-404-203
[2010] NZHC 2297
•17 December 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-00203
BETWEEN MUNHWA BROADCASTING CORPORATION
First Plaintiff
ANDTELEVISION BROADCAST LIMITED Second Plaintiff
ANDKOREAN BROADCASTING SYSTEM Third Plaintiff
ANDWORLD TV LIMITED Fourth Plaintiff
AND YOUNG INTERNATIONAL 2009
LIMITED
First Defendant
ANDYOUNG HOON CHO AND YANG WOOK HAM
Second Defendants
Hearing: 17 September 2010
Counsel: J R Katz QC and E St John for the plaintiffs
J A McBride for the defendants
Judgment: 17 December 2010 at 3.30 p.m.
JUDGMENT OF POTTER J
In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment
with a delivery time of 3.30 p.m. on 17 December 2010.
Solicitors: Hornabrook McDonald Lawyers, P O Box 91845, Auckland
ChambersCraigJarvis, P O Box 47830, Ponsonby, Auckland
Copy to: R Katz QC, P O Box 1900, Shortland Street, Auckland
J McBride, P O Box 5643, Auckland
E St John, P O Box 105 270, Auckland
MUNHWA BROADCASTING CORPORATION AND ORS V YOUNG INTERNATIONAL 2009 LIMITED AND ANOR HC AK CIV-2010-404-00203 17 December 2010
Table of Contents
Introduction [1] Parties [2] Plaintiffs’ application for interim injunction [5] Principles applicable [8] Background
The system under consideration [9] Encryption and decryption [13] Use of servers [20] Retention/storage [23] Time shifting [25]
Serious question to be tried
Causes of action [26] Copyright [27]
Relevant statutory provisions : Copyright Act 1994 [33] Have the defendants copied the copyright works? [50] Have the defendants “communicated” the
copyright works in breach of s 16(1)(f)? [86]Have the defendants made an adaptation of the works or copied or communicated an adaptation
of the works? [107] Section 29 of the Copyright Act 1994 [110] Section 228 of the Copyright Act 1994 [115] Exclusive licence [134]
Fair Trading Act 1993 [142] The ‘Maneki’ decision [146] Balance of convenience [151] Undertaking as to damages [156]
Overall justice
Delay [193]
Other matters [201] Orders [204] Costs [208] Next Steps [209]
Introduction
[1] The plaintiffs seek injunctive relief against the defendants to restrain them from broadcasting material in New Zealand which the plaintiffs claim infringes the first to third plaintiffs’ copyright in the material. The defendants deny that any copyright infringement is involved.
Parties
[2] The first to third plaintiffs are foreign broadcasters. Munhwa Broadcasting Corporation (“MBC”) and Korean Broadcasting System (“KBS”) are Korean broadcasters; Television Broadcast Ltd (“TVB”) is a Hong Kong broadcaster that transmits its broadcasts into Korea.
[3] The fourth plaintiff, World TV Ltd (“World TV”), is a New Zealand company that broadcasts in New Zealand content it receives from MBC, TVB and KBS under license. World TV sells content to New Zealand subscribers, distributing through channels operated by the Sky Television network. World TV licenses from Sky television a number of channels for this purpose which subscribers in New Zealand can access on subscription.
[4] The first defendant, Young International (2009) Ltd (“Young”) is a New Zealand company. Young operates a service or system they call Baro TV by which viewers in New Zealand can access certain broadcasts of MBC, TVB and KBS. The second defendants are its directors (and authorise and direct the actions of Young).
Plaintiffs’ application for interim injunction
[5] The plaintiffs allege that the defendants are advertising for sale, distributing and broadcasting material in New Zealand in breach of the plaintiffs’ copyright in that material, and that the actions of the defendants do, or are likely to mislead and deceive the public. They say that Young through its Baro TV system is
circumventing World TV’s right to broadcast in New Zealand content it receives under licence from the copyright owners MBC, TVB and KBS, and that because the defendants’ system enables viewers to watch the same broadcasts without having to purchase a decoder and pay licence fees to Sky and World TV, World TV is suffering loss.
[6] The plaintiffs’ application seeks orders restraining the defendants, their servants and agents from:
a) Distributing by any means within New Zealand material broadcast by
MBC, TVB and KBS;
b)Advertising, promoting, displaying, offering for sale or otherwise in trade or commerce within New Zealand offering to the public material broadcast by MBC, TVB and KBS;
c) Using in trade or commerce within New Zealand the logos of MBC, TVB and KBS, or otherwise representing to the public that they are associated with those companies, their servants, agents, or subsidiaries.
[7] Young undertook to delete the logos of the plaintiffs from its documentation and marketing material in New Zealand pending trial and it seems to be accepted that injunctive relief is not required in that regard.
Principles applicable
[8] The principles are well established by the authorities of American Cyanamid
Co v Ethicon Ltd1 and Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd.2
The Court must consider:
a) Whether there is a serious question to be tried;
b) Where the balance of convenience lies;
1 American Cyanamid Co v Ethicon Ltd [1975] AC 396.
2 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129.
c) The Court must then take a step back and consider the overall justice of the case.
Background
The system under consideration
[9] Young’s service or system, which they call Baro TV (and which will be called the Baro TV system in this judgment), operates in the following manner. Young arranges for certain broadcasts to be received in Korea. If the broadcast is a pay service, a fee for the subscription is paid by Young on behalf of each of Young’s New Zealand customers. Those broadcasts are received in Korea by a device called a Digizon standard or Digizon STD, with each New Zealand customer either leasing or owning their own device. All of the devices are stored together in a warehouse or by a similar arrangement. Each customer in New Zealand also has a receiving device called a Digizon on TV device (either leased or owned). This device is connected to the customer’s television set in New Zealand.
[10] The device in Korea receives the local broadcast there. It is then sent to New Zealand via the internet, received by the customer’s device in New Zealand, and viewed by Young’s customers in New Zealand. The device in Korea digitises the signal that is sent, and the New Zealand receiving device enables the customer to view the content on their television. The broadcast is viewed in real time (there is no time shifting involved).
[11] There appears to be agreement between the plaintiffs and the defendants that the system involves digitisation of the broadcast, which is received as an analogue signal in Korea.
[12] Other aspects or asserted aspects of the system were the subject of affidavit evidence given by the plaintiffs’ expert Mr Roger Randle, the defendants’ expert Mr Mark Mulholland and also by Mr Cho a director of Young. There was disagreement on a number of aspects.
Encryption and decryption
[13] There is an issue as to whether encryption and decryption are involved in the Baro TV system. The defendants state there is no encoding or decoding done by them. Mr Cho says in his affidavit sworn 30 April 2010:
The Digizon boxes do not encode or decode any signals. The sending box can be described as “an encoder” in that it uses “Codec” technology to compress the signal which carries the visual image … Likewise the set-top box can be described as a decoder in that it de-compresses the signal. But neither of the boxes is a “decoder” in the sense of (say) a Sky decoder, namely a device that accesses the signal.
[14] Mr Randle disagrees with the above statement of Mr Cho. He states in his affidavit sworn 10 June 2010 that the system used by the defendants is clearly stated on the digital website of KCS (the company in Korea from which Young sources the Digizon brand device), as involving an encoder, and whenever data is encoded it must later be decoded to be humanly readable or viewable. He states that all these systems involve digitising the data (if it is in analogue format) and then encoding/compressing it to enable the data to be fed via the internet. He says that the Codec programme used to enable the data to be fed via the internet is a device for encoding the data that is to be digitally streamed. He says that Codec systems do not necessarily involve compression but in the case of a television broadcast this would be necessary. He says the defendants are allowing viewers to receive a signal that is digitised, encrypted and encoded (though possibly decrypted at the Korean end), with each channel received in Korea separately encoded, and the New Zealand device decoding and reformatting the broadcast into human viewable form.
[15] Mr Mulholland says he agrees with all but a small part of Mr Randle’s affidavit. He says:
For clarification it is important that a distinction be made between encoding/decoding data, in this case a digitised video stream, for encryption or for compression. These are quite different concepts ...
[16] He identifies that encryption is used for security and is a process that essentially converts or scrambles the data so that a specific key is required to convert or unscramble the data. (This is the process used by Sky TV). Compression, in the
context of video, is used to “shrink” the large quantity of data involved in video to a smaller size for transmission over the internet.
[17] Mr Mulholland says that the Sky TV service in New Zealand uses both encryption and compression and the Sky “decoder” box performs both functions.
[18] In contrast, he says, there is no evidence that the Digizon units at either the Korean or New Zealand end provide anything else but encoding and decoding for compression. He expresses the opinion that the Digizon STD on TV units are incapable of decrypting an encrypted TV broadcast. However, he acknowledges there is no technical means available to remotely ascertain how the “sending” units in Korea receive the video stream to be compressed and sent to the clients receiving device in New Zealand and says he has not sighted the Korean technical platform used to provide the sending units with the TV signal. He says he viewed a video of a Baro TV employee plugging a television directly into a wall socket in Korea, which implies that there are unencrypted and uncompressed channels available from the standard cable service. He referred to advice from Mr Cho that the “standard” package provided by the cable company in Korea is not encrypted and is an analogue service, as opposed to the more expensive digital service.
[19] In summary, Mr Mulholland says there is no doubt that the signal is encoded for compression and subsequently decompressed by the on TV device in New Zealand, but he says there is no evidence, and nor is it logical to conclude that this signal is also encrypted.
Use of servers
[20] According to Mr Randle, if servers are involved in the process then copying has taken place in terms of storage of the broadcast in some form. Mr Randle states that he assumes the process involves servers, which must involve copying of the transmission. He bases this conclusion on some website material about the Digizon devices.
[21] Mr Mulholland disagrees with the inferences made by Mr Randle about servers. He says that although the products used have options to involve servers, “there is no definitive indication that this is the manner in which Baro TV provide their service”. He says that all investigations indicate that local caching (i.e. New Zealand based servers) of traffic by any means is highly unlikely to be occurring. However, remote caching on a server at the Korean end, is harder to determine as the nature of the Baro TV platform in Korea is not completely known or verifiable at this time due to its location. He expresses the opinion that although remote caching is possible, it is unlikely, the simplest reason being that the Baro TV system does not need to do so, as Young can support their customers without needing to copy and/or cache the content.
[22] Mr Mulholland did not travel to Korea to view the systems there. Mr Cho denies that any servers are used in the operation. He says they try to keep the system as simple as possible.
Retention/storage
[23] There is disagreement about whether data is retained or stored in the device at the New Zealand end. Mr Randle says that the data:
... when received by a receiving device must be held or retained in the memory of the computer to enable it to be read, understood, interpreted, decoded and processed, so that the data can be regurgitated and displayed on a screen in a human viewable form.
[24] To this Mr Mulholland responds that:
Retention of any data is purely transient, and both processes only maintain a current “workspace”, constantly bringing in new data to be worked on and removing data that has already been processed. This degree of transient retention is a part of the transmission process.
He says there is no evidence of this stream being copied or stored anywhere else in the process.
Time shifting
[25] There is a difference of opinion about the potential for time shifting in the system, that is, the storing for broadcast to enable parts to be viewed at a later time. Mr Randle says that a certain receiving device would, if available in New Zealand, enable recording and time shifting. Mr Mulholland says this is only possible if a recording device was added by the customer and without such a recording device the customer can view the broadcasts only in real time and with no capability of recording or time shifting.
Serious question to be tried
Causes of action
[26] There are four causes of action pleaded in the plaintiffs’ first amended statement of claim:
a) First cause of action: Infringement of copyright by the first defendant;
b) Second cause of action: Misleading and deceptive conduct under s 9
Fair Trading Act 1993 by the first defendant in that Young expressly or by implication represents to the public that the defendants are lawfully able to distribute the material and are doing so with the endorsement of the first to third plaintiffs;
c) Third cause of action: Infringement of copyright by the second defendants (in that they have unlawfully authorised and participated in a common design to infringe the plaintiff’s rights);
d)Fourth cause of action: Misleading and deceptive conduct under the s 9 Fair Trading Act 1993 by the second defendants (that as directors of the first defendant, the second defendants are liable as accessories under the Fair Trading Act 1993).
Copyright
[27] It is common ground that the central issue in this case is the plaintiffs’ claim of infringement of copyright by Young and its directors.
[28] To succeed, the plaintiffs must prove the following elements:
a) There is a work in which copyright can subsist;
b) Copyright does in fact subsist in that work;
c) The plaintiffs are the owners of that copyright or an exclusive licensee or otherwise entitled to enforce it;
d) The defendants have infringed that copyright. [29] It is not in dispute that:
a) There is a work in which copyright can exist, namely the broadcasting material of MBC, TVB and KBS;
b)The broadcasting material is a “communication work” within the definition in s 2 of the Copyright Act 1994 (“the Act”) and copyright subsists in that work;
c) MBC, TVB and KBS own the copyright in the broadcasting material. (The fourth plaintiff claims to hold within New Zealand exclusive rights from the other plaintiffs and to be otherwise entitled to enforce the copyright. I shall return to this aspect later in this judgment).
[30] Ownership by MBC, TVB and KBS, of the broadcasting material is recognised and enforceable in New Zealand under the Copyright (Application to Other Countries) Order 1995 which extends copyright protection in New Zealand to foreign works if created by a person or entity in a recognised foreign country of which the Republic of Korea (South Korea) is one.
[31] The issue is whether the defendants have infringed the plaintiffs’ copyright in the broadcast material. This requires determination of whether the plaintiffs are able to establish on the balance of probabilities that the defendants have carried out in relation to the broadcast material, an act or acts restricted by copyright, as provided in s 16 of the Act.
[32] This gives rise to the following sub-issues:
a) Have the defendants copied the copyright works: s 16(1)(a) of the
Act; and/or
b) Have the defendants communicated the copyright works to the public:
s 16(1)(f) of the Act.
Relevant statutory provisions: Copyright Act 1994
[33] Before considering these issues the relevant statutory provisions in their context in the Act, need to be set out. The Act has been in force since January 1995 and was relevantly and importantly amended in 2008.
[34] Part 1 of the Act relates to Description, ownership, and duration of copyright.
[35] Section 14 defines “copyright” as:
... a property right that exists, in accordance with this Act, in original works of the following descriptions:
. . .
(d) communication works.
[36] “Communicate and communication work” are both definitions inserted in the interpretation section, s 2, by the 2008 amendment, essentially in substitution for the narrower definition of “broadcast”.
[37] “Communicate” means to transmit or make available by means of a communication technology, including by means of a telecommunications system or electronic retrieval system, and “communication” has a corresponding meaning.
[38] “Communication work” means a transmission of sounds, visual images, or other information, or a combination of any of those, for reception by members of the public, and includes a broadcast or a cable programme.
[39] “Copying” (as amended in 2008):
(a)means, in relation to any description of work, reproducing, recording, or storing the work in any material form (including any digital format), in any medium and by any means; and]
(b) Repealed.
(c)includes, in relation to an artistic work, the making of a copy in 3 dimensions of a two-dimensional work and the making of a copy in
2 dimensions of a three-dimensional work; and
(d)includes, in relation to a film or communication work, the making of a photograph of the whole or any substantial part of any image forming part of the film or communication work—
[40] Paragraph 16 vests in the copyright owner the exclusive right to do certain acts. It provides:
16 Acts restricted by copyright
(1)The owner of the copyright in a work has the exclusive right to do, in accordance with sections 30 to 34 of this Act, the following acts in New Zealand:
(a) To copy the work:
…
(f) to communicate the work to the public: (g) To make an adaptation of the work:
(h)To do any of the acts referred to in any of paragraphs (a) to (f) of this subsection in relation to an adaptation of the work:
(i)To authorise another person to do any of the acts referred to in any of paragraphs (a) to (h) of this subsection.
(2) Subsection (1) of this section applies subject to Parts 3 and 8 of this
Act.
(Parts 3 to 8 deal with such matters as acts permitted in relation to copyright works, licensing etc).
[41] Part 2 of the Act relates to Infringement of Copyright. Section 29 provides:
(1) Copyright in a work is infringed by a person who, other than pursuant to a copyright licence, does any restricted act. (2) References in this Act to the doing of a restricted act are to the doing of that act –
(a) In relation to the work as a whole or any substantial part of it; and
(b) Either directly or indirectly: -
And it is immaterial whether any intervening acts themselves infringe copyright.
[42]
Section 30 provides:
The copying of a work is a restricted act in relation to every description of copyright work.
[43]
Section 33 provides:
Communicating a work to the public is a restricted act in relation to every description of copyright work.
[44]
Section 34(1) provides:
The making of an adaptation of a work is a restricted act only in relation to a literary, dramatic, or musical work.
[45]
copyr
Section 37 (which appears in the section Secondary infringement ight) provides : of
37 Providing means for making infringing copies
(1) Copyright in a work is infringed by a person who, other than pursuant to a copyright licence,— (a) Makes; or (b) Imports into New Zealand; or
(c) Possesses in the course of a business; or
(d) In the course of a business or otherwise, sells or lets for hire;
or
(e)In the course of a business, offers or exposes for sale or hire—
an object specifically designed or adapted for making copies of that work, knowing or having reason to believe that the object is to be used to make such infringing copies.
(2)Copyright in a work is infringed by a person who, other than under a copyright licence, communicates a work to 1 or more persons, knowing or having reason to believe that infringing copies will be made by means of the reception of the communication in New Zealand or elsewhere.
[46] Part 3 of the Act relates to Acts permitted in relation to copyright works. Section 43A (inserted in 2008) provides:
43A Transient reproduction of work
A reproduction of a work does not infringe copyright in the work if the reproduction—
(a) is transient or incidental; and
(b) is an integral and essential part of a technological process for—
(i)making or receiving a communication that does not infringe copyright; or
(ii) enabling the lawful use of, or lawful dealing in, the work;
and
(c) has no independent economic significance.
[47] Part 6 relates to Remedies for infringement. Section 120 provides:
120 Infringement actionable by copyright owner
(1) An infringement of copyright is actionable by the copyright owner. (2) In proceedings for infringement of copyright, all such relief by way
of damages, injunctions, accounts, or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.
(3) This section has effect subject to the following provisions of this
Part of this Act.
[48] Section 123 provides for the rights and remedies of an exclusive licensee. It provides:
123 Rights and remedies of exclusive licensee
(1)An exclusive licensee has, except against the copyright owner, the same rights and remedies under sections 120, 121, and 122 of this Act in respect of matters occurring after the grant of the licence as if the licence were an assignment.
(2) The rights and remedies of the exclusive licensee under sections 120,
121, and 122 of this Act are concurrent with those of the copyright owner.
(3)In proceedings brought by an exclusive licensee pursuant to this section, a defendant may avail himself or herself or itself of any defence that would have been available if the proceedings had been brought by the copyright owner.
[49] Section 228 provides:
228Rights and remedies in respect of apparatus, etc, for unauthorised reception of transmissions
(1) A person who—
(a)Makes charges for the reception of programmes included in a communication work provided from a place in New Zealand; or
(b)Sends encrypted transmissions of any other description from a place in New Zealand—
is entitled to the rights and remedies in subsections (2) and (3) of this section.
(2) A person to whom subsection (1) of this section applies—
(a) Has the same rights and remedies against a person referred to in subsection (3) of this section as a copyright owner has in respect of an infringement of copyright; and
(b)Has the same rights under section 122 or section 132 of this Act in relation to any apparatus or device (of the kind referred to in subsection (3)(a) of this section) as a copyright owner has in relation to an infringing copy.
(3)The person referred to in subsection (2) of this section is a person who—
(a)Makes, imports, sells, or lets for hire any apparatus or device designed or adapted to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so; or
(b)Publishes any information that is calculated to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so.
(4) In section 121(1) of this Act as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright existed in the work shall be construed as a reference to not knowing or having reason to believe that the acts complained of infringed the rights conferred by this section.
(5)Section 134 of this Act applies, with all necessary modifications, in relation to the disposal of anything delivered up under subsection (2)(b) of this section.
Have the defendants copied the copyright works?
[50] The owner of the copyright (accepted to be MBC, TVB and KBS) in a work (accepted to be the plaintiffs’ broadcasts), has the exclusive right under s 16 “ ... to copy the work” (s 16(1)(a)), and to authorise another person to copy the work (s 16(1)(i)).
[51] The definition of “copying” is set out above”3 but the part of the definition relevant to this issue bears repeating:
Copying –
(a) means, in relation to any description of work, reproducing, recording, or storing the work in any material form (including any digital format), in any medium and by any means ... (emphasis added)
[52] The plaintiffs contend that the Baro TV system involves copying. The defendants say that no copying is involved or alternatively that any copy is transient with the result that it does not involve copying of “any substantial part” of the work within the meaning of s 29(2) of the Act and/or is permitted by s 43A.
3 Refer [39] above.
[53] The defendants say that all they are doing is “place shifting”, that is enabling their customers to view in New Zealand a domestic television broadcast in Korea which the New Zealand viewers have purchased by subscription paid to the cable service that broadcasts material of MBC, TVB and KBS.
[54] The plaintiffs respond that the defendants’ contention that all they do is rebroadcast or retransmit or authorise or enable those acts in a one-to-one or private or domestic context, is beside the point. They say the importance lies in how the defendants’ Baro TV system actually works.
[55] The plaintiffs analyse that, in simple terms, for any broadcast to be received by a New Zealand customer of Young requires the following steps in the process:
a)
b)
Digitisation of the broadcast in Korea;
Compression of the digitised signal to enable it to be transmitted via
the internet; c)
Reception of that digitised and compressed signal in New Zealand;
d)
Control of the entire process including the Korean end from New
Zealand.
[56]
The
plaintiffs note that following the 2008 amendments to the Act
digitisation is now within the definition of “copying”, providing that the digitisation process copies the work “in any material form”.4
[57] The fact of digitisation is admitted by the defendants, as is the fact that control of the process lies with the New Zealand viewer who is supplied by Young with the Digizon on TV box. The defendants also describe compression and decompression as a necessary part of the Baro TV system, to enable the signal to be sent over the internet.
4 Refer [51] above.
[58] As noted above, the fact of digitisation is common ground. But the evidence of the respective experts for the plaintiffs and the defendants, Mr Randle and Mr Mulholland, is conflicting about a number of aspects of the defendants’ Baro TV system, including whether encryption and decryption are involved, whether servers are used and whether the system permits time shifting. I am unable to resolve these conflicts on the basis of the affidavit evidence filed. I also note that in some respects the experts have been limited in the opinions they have been able to provide because they have not accessed first hand, relevant factual information. For example, Mr Mulholland was unable remotely to determine the exact nature of the Baro TV platform in Korea, and Mr Randle placed reliance on the KCS digital website in expressing his views about encryption and decryption, but the defendants claim the website provides information which does not relate to the Baro TV system. Thus, while the evidence of the experts is helpful in analysing and understanding the Baro TV system, I set it to one side in relation to the areas of dispute I have identified, because it cannot assist me. However, if and when further evidence is available on these issues it could well assist in determining the nature and extent of any copying involved in the system.
[59] The remaining issue for determination, therefore, is whether the Baro TV system involves copying the copyright work by the digitisation process in any material form. The plaintiffs say that the material form in issue here will be the reproduction or copying of the work on a television monitor at the point in time when the viewer watches the broadcast on his or her domestic television set in New Zealand. They say that reproduction of the work in material form will also occur at the point where the Digizon on TV device receives and reproduces the signal and converts the digitised or encoded signal into a viewable form.
[60] The plaintiffs refer to English case law in this context and submit that with one exception, the authority is in their favour. The contrary authority is Football Association Pioneer League Ltd v QC Leisure (No 2).5 That case concerned the supply by the defendants of decoder cards which enabled viewers to bypass conditional access technology protecting the plaintiffs’ broadcasts, contrary to s 298
5 Football Association Pioneer League Ltd v QC Leisure (No 2) [2008] FSR 289.
of the Copyright Designs and Patents Act 1988 (UK), (s 298 is the equivalent of s 228 in the Act).
[61] Kitchin J considered whether the acts complained of constituted copying of the plaintiffs’ broadcasts. He posed the question: Are copies of a substantial part of the copyright works made in the decoder boxes? (This question followed from s 17(4) of the Copyright, Designs & Patents Act 1988 which included as a restricted act the making of copies of the whole or a substantial part of the copyright work). He stated that a small number of individual frames reproduced at any one time in a decoder box did not constitute copying as it was only transient copying and not of a
substantial part. He said: 6
… there was no statutory intention to make a few frames of a film a substantial part when one is considering the copying of one film in the form of another film. … It is a restricted act to make a transient copy of a substantial part of the work. In other words, the substantial part must be embodied in the transient copy, not a series of different transient copies which are stored one after the other in the decoder box.
[62] The plaintiffs submit that the reasoning of Kitchin J is incorrect and has not been followed in other decisions. The plaintiffs also note that the definition of “copying” does not impose any requirement for there to be copying of “a substantial part” but rather relates to reproducing, recording or storing the work “in any material form” (including any digital format).
[63] The plaintiffs refer to UEFA v Briscomb7 where Lindsay J, following Aldous J in Bookmakers Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd,8 held that reproduction in a material form includes materialisation on a television monitor. The plaintiffs submit that UEFA v Briscomb is very similar to the present case. UEFA claimed through itself and on behalf of other plaintiffs to be the owners of various copyrights including broadcasts of games. The defendants disseminated these broadcasts by a digital signal over the internet which involved digitising the content and then further copying to each subscriber who received the signal.
6 At [226]-[227].
7 UEFA v Briscomb [2006] EWHC (Ch) 1268, 5 May 2006.
8 Bookmakers Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd [1994] FSR 723 at 738.
[64] It was held that the digitisation by the defendants involved each part of the broadcast being copied on to the computer where they were processed into a digital signal which was disseminated over the internet to the defendants’ subscribers, and that the processing of each part of the broadcast involved it being copied on to the computer of each subscriber who received the signal, which was a further copying.
[65] The plaintiffs also referred to Gilham v R9 and Higgs v R10 which held that the making of transient copies constituted a restricted act. (I note that these cases applied a specific provision of s 17(6) of the UK Act to that effect).
[66] Mr Katz submitted that Mr Mulholland’s evidence “proves the case of infringement for the plaintiffs based on these authorities”. Mr Mulholland said in response to Mr Randle’s evidence that when received by a receiving device, data must be held or retained in the memory of the computer to enable it to be read, understood, interpreted, decoded and processed so that it can be regurgitated and
displayed on a screen in a human viewable form: 11
Retention of any data is purely transient ... This degree of transient retention is a part of the transmission process.
[67] The plaintiffs finally noted that although the acts of copying may occur outside New Zealand, namely in Korea, this does not avoid infringement as they are directed or controlled from New Zealand.
[68] I accept the plaintiffs’ submission that “reproducing” in “any material form”
in terms of the definition of copying, occurs in this case:
• upon the reproduction or copying of the work on a television monitor at the point in time when the viewer watches the broadcast on his or her domestic television set in New Zealand; and
• when the Digizon on TV device receives and converts the digitised signal into a viewable form.
9 Gilham v R [2009] EWCA (Crim) 2293, 9 November 2009.
10 Higgs v R [2008] EWCA (Crim) 1324, 24 June 2008.
11 Refer [24] above.
[69] While the reproduction and retention of data may be transient it nevertheless constitutes copying in terms of the definition of copying in s 2. The line of authority relied on by the plaintiffs, with the exception of the decision of Kitchin J in the Football Association case,12 supports this approach.
[70] However, the defendants say this contention ignores two vital points which provide complete answers:
a) That the Korean broadcaster has given permission to the cable company to view the cable signal; and
b)That “transient or incidental reproduction” come within the exception in the new s 43A of the Act.13
[71] As to the first point, the defendants note that the cable subscription in respect of each New Zealand Baro TV customer is paid to the cable company, and the subscription “fairly obviously comes” with permission to view the cable signal. The broadcasts of MBC, TVB and KBS are “bundled in” with the cable channels and there can be no suggestion that the cable company lacks authority to carry the broadcast.
[72] The defendants submit that the cases of Higgs, Gilham and Sony Computer Entertainment Inc v Ball14 are cases where the defendants had unlawfully accessed the plaintiffs' copyright works by deploying services to circumvent the plaintiffs’ technological protection measures, whereas in the Baro TV service the access to the broadcasts is lawful in the form of the paid for cable subscriptions.
[73] The defendants’ proposition must hold good for viewing in Korea, but I do not consider it can extend to and include permission to view the broadcasts of MBC, TVB and KBS in New Zealand. Copyright is a property right15 which exists under and in accordance with the Act. The right is territorial, as is evidenced and
12 Refer [60] above.
13 Refer [46] above.
14 Sony Computer Entertainment Inc v Ball [2005] FSR 159.
15 Section 14 of the Act
confirmed by the requirement to extend to New Zealand the rights of MBC, TVB and KBS as copyright owners by the Copyright (Application to Other Countries) Order 1995. The provisions of the Act such as those relating to exclusive licences in ss 123 and 124, and s 228 providing protection for re-broadcasters in New Zealand, further emphasise and confirm the territorial nature of copyright.
[74] The acts of copying in this case either occur in New Zealand, or are directed or controlled from New Zealand through the New Zealand customer’s Digizon on TV device. I do not accept that lawful access to the broadcasts of MBC, TVB and KBS through the cable subscription paid in Korea, extends to receiving and viewing outside Korea. Therefore, I do not accept the defendants’ submission on the first point.
[75] Secondly, the defendants rely on s 43A of the Act as an exception to the infringing act of copying by “reproducing ... in any material form”.16 The defendants submit that copies made during the Korea to New Zealand transmission process would not now infringe because they would fall within the new s 43A of the Act inserted by the 2008 amendment.
[76] Mr McBride cited from “Intellectual Property Law in New Zealand”, that s 43A introduced:17
A limited exception to the reproduction right for transient or incidental copying undertaken by computers or communication networks if the copying has no independent economic significance and is as a result of an integral and essential part of the technological process enabling non-infringing use or dealing with a work.
[77] Section 43A is included in Part 3 of the Act which is headed Acts permitted in relation to copyright works. Part 3 provides for a number of “permitted acts” which will not be infringements of a copyright work. Examples of the permitted acts are incidental copying of a copyright work in an artistic work or film; copying for educational purposes of literary, dramatic, music, musical or artistic works or films
16 Section 2(1)(a) of the Act. Refer [39] above.
17 Thomson Reuters, Brookers Online, Intellectual Property Law in New Zealand at [4.2-4.2.2(1)].
or sound recordings; anything done for the purposes of an examination. The permitted acts in Part 3 except an infringer of copyright from being in breach of copyright. Hence, as Copinger states, the infringement must be established before the relief provided by the permitted acts in Part 3 can be relied on to except or rescue an otherwise infringing act.18
[78] By its very terms s 43A applies to reproduction of a work which would otherwise infringe copyright and provides an exception for an infringement if the reproduction meets the three criteria in s 43A, that it is transient or incidental; is an integral and essential part of the technological process enabling non-infringing use of, or lawful dealing in the work; and has no independent economic significance.
[79] Doogue J said in Longman Group Limited v Carrington Technical Institute Board of Governors, when considering the application of certain of the statutory exceptions in the Act:19
I therefore consider the particular subsections without any predisposition that they are to be interpreted either strictly in favour of the copyright holder or liberally in favour of the educational users who seek to be freed from the bounds of copyright protection.
[80] The Judge then referred to s 5(j) of the Acts Interpretation Act 1924 which requires:
Such fair, large and liberal interpretation as will best ensure the attainment of the object of the Act ... according to its true intent, meaning and spirit.
He then said:
I also bear in mind that the Act gives the holders of copyright exclusive rights in respect of the copyright work unless those seeking to use the work in a way which would otherwise be an infringement of those rights come within one of the exceptions created by the Act or, arguably, can establish a public interest defence.
[81] It seems to me that the defendants seek to use s 43A in a way that is not within the intent, meaning and spirit of Part 3 of the Act. The defendants do not
18 Copinger and Skone James on Copyright (15th ed) at [9.12].
19 Longman Group Limited v Carrington Technical Institute Board of Governors [1991] 2 NZLR
574 at 586.
admit that their Baro TV system breaches the plaintiffs’ exclusive rights in their copyright works, namely their broadcasts. Rather, the defendants want to use the provisions of s 43A to establish that the Baro TV service, in the manner in which they operate it, does not breach the plaintiffs’ copyright.
[82] Part 3 of the Act recognises “fair dealing” acts and activities which, while in breach of copyright, nevertheless warrant statutory permission as an exception to the property right that exists in copyright. The reproduction or copying of the copyright work involved in the Baro TV system, is simply not in that category.
[83] Further, to come within the exception in s 43A, the reproduction of the copyright work must meet all three requirements. The reproduction involved in the Baro TV system may be transient and it may not have independent economic significance (requirements (a) and (c) of s 43A), but it cannot meet requirement (b) that the technological process of which it is an integral part is for making or receiving a communication that does not infringe copyright or enables the lawful use or lawful dealing in the copyright work.
[84] I therefore reject the second of the defendants’ two points.
[85] I conclude that whether the Baro TV system as operated by the defendants involves a restricted act under s 16(1)(a), namely copying of communication works, being the broadcasts of MBC, TVB and KBS, clearly raises a serious question to be tried.
Have the defendants “communicated” the copyright works in breach of s 16(1)(f)?
[86] It will be helpful to repeat the relevant statutory provisions. Section 16(1)(f)
provides:
The owner of the copyright work has the exclusive right to do ... the following acts in New Zealand:
. . .
(f) to communicate the work to the public.
[87] The copyright work in issue here is a communication work which is defined in s 2:
Communication work means a transmission of sounds, visual images, or other information, or a combination of any of those, for reception by members of the public, and includes a broadcast or a cable programme.
[88] Section 2 also defines “communicate”:
Communicate means to transmit or make available by means of a communication technology, including by means of a telecommunications system or electronic retrieval system, and communication has a corresponding meaning.
[89] It is common ground that s 16(1)(f) creates a standalone restricted act in which copying is not involved. It is not in dispute that the Baro TV system involves a communication of a communication work (broadcast).
[90] The defendants contend that the communication involved in the Baro TV system is not an act restricted by of s 16(1)(f) because it does not involve a communication of the work “to the public”.
[91] The defendants refer also to s 33 which provides:
33. Infringement by communicating to the public -
Communicating a work to the public is a restricted act in relation to every description of copyright work.
[92] The defendants say there is “no getting around that”. They say that the one- to-one communication facilitated by the Baro TV system is not a communication of the broadcast (communication work) to the public and is therefore not a restricted act under s 16(1)(f). They say the Baro TV system simply offers the customer in New Zealand a more convenient way of receiving, through the service offered by Young, the Korean cable feed.
[93] The plaintiffs submit that the defendants’ contention “involves a misunderstanding or misconception” of the provisions of the Act.
[94] They refer to s 14(1)(d) which provides that copyright is a property right that exists in (inter alia) communication works.
[95] They next refer to the definition of communication work which means “a transmission ... for reception by members of the public” and includes a broadcast or a cable programme.
[96] The plaintiffs’ written submissions present a reformulated version of s 16(1)(f) by adding in the definitions of communicate and communication work to produce the following:
16(1)The owner of the copyright in a work [being a communication work, namely a transmission of sounds, visual images, or other information or a combination of any of those, for reception by members of the public, and including a broadcast] has the exclusive right to do … the following acts in New Zealand:
. . .
(f) to communicate the work [namely to transmit or make available by means of a communication technology that work].
[97] The plaintiffs argue that the work in which they have copyright is a communication work (a broadcast) “for reception by the public” because it is a broadcast in Korea intended for reception by anyone who wishes to receive it (upon payment of a licence fee in the case of paid television broadcasts).
[98] They then contend that the plaintiffs as the owners of the copyright and the communication works have the exclusive right in New Zealand, under s 16(1)(f), to communicate that work, regardless of whether the communication is to the public or to a single person.
[99] The plaintiffs submit that the only relevance or requirement of “to the public” is in relation to the copyright work itself, i.e. pursuant to the definition of communication work. The copyright work must be one that is “for reception by members of the public”. They say that any relevance of “to the public” ceases there. Once the copyright work is for reception by members of the public the restrictive acts in relation to it are engaged. They reason therefore that no person other than the
owners of the copyright can rebroadcast or communicate that work (or in terms of s 16(1)(a), copy that work).
[100] The plaintiffs submit that the logic behind this reasoning is compelling. The restricted acts are intended to prevent retransmitting or rebroadcasting a broadcast or any form of copying of it.
[101] They seek to gain support for this reasoning from Part 3 of the Act which specifically exempts from what would otherwise be an infringement, recording of a broadcast for time shifting purposes (s 84) and other specific purposes exempted under Part 3. They say that the purpose of these provisions is to ensure that once a broadcast is available to the public, the rights of the person receiving the broadcast are severely limited and specifically exclude the right to copy or rebroadcast the work even when only done for that single individual.
[102] The defendants say the reliance claimed by the plaintiffs on the Part 3 provisions is misplaced, noting that the exception for recording for purposes of time shifting for personal purposes relates only to “copying”, i.e. recording, not “communicating to the public”.
[103] The defendants’ point may have some validity in relation to s 84 but clearly other provisions of Part 3, for example the exception in s 83 for the purposes of complaining, authorise both the recording and communication of the copyright work for the specific purpose addressed by that section, namely the purpose of making a complaint to a complaint authority. If communication of a copyright work to an individual is not a restricted act then it is difficult to see why a provision such as s 83 needs to provide an express exception for communicating to another person, in this case a complaint authority.
[104] The competing contentions of the parties raise difficult issues of statutory interpretation. However, I find the plaintiffs’ submissions on the interpretation of the relevant provisions of the Act to be persuasive, though not without difficulty. If s 16(1)(f) were interpreted to exclude from the restricted act of communicating, any and all communications which are one-to-one (and arguably one-to-more-than-one,
short of “to the public” generally), the property right of the copyright owner under s 14 could be rendered nugatory or at the least seriously compromised and undermined. I do not consider this can be the intent and purpose of the legislation.
[105] Perhaps an alternative way of reconciling the interpretation of s 16(1)(f) with the definition of “copying” is by applying the meaning of “to the public” given in Copinger, where the learned authors in considering like provisions under the Copyright Designs & Patents Act 1988 (UK), under the heading “The
Communication to the Public Right” state:20
Members of the public
Although the Act refers to the work being made available to “the public”, in the usual way this does not mean that the restricted act is only committed when the public at large can obtain access to it. Where the work is only available to subscribers to an internet service, the subscribers will qualify as “the public” for this purpose.
[106] I am not required to determine this issue, and expressly do not, but clearly it raises a serious question to be tried. It certainly cannot be said that the plaintiffs’ case on the question of statutory interpretation, has no legal basis at all.21
Have the defendants made an adaption of the works or copied or communicated an adaption of the works?
[107] The restricted acts pleaded under this heading rely on ss 16(1)(g) and (h). The plaintiffs plead that by advertising for sale, distributing and communicating the copyright works or by supplying the Digizon on TV device the defendants are infringing the plaintiffs’ copyright. They say that on the basis of the evidence the broadcast is physically altered by the defendants by compressing it via the encoding technology to make it transmissible on the internet and then encoding again at the receiving end in New Zealand to make it humanly viewable.
[108] The defendants respond primarily, by referring to s 34(1) of the Act which provides:
20 Copinger and Skone James on Copyright (15th ed) at [7-118].
21 Carter Holt Holdings Ltd v Fletcher Holdings Ltd [1980] 2 NZLR 80 at 88.
The making of an adaptation of a work is a restricted act only in relation to literary, dramatic or musical work.
[109] Given the provisions of s 34(1) I would not have thought that a restricted act in relation to adaptation arises under s 16. I did not understand counsel for the plaintiffs to pursue this aspect in submissions in reply. I do not propose to take it further.
Section 29 of the Copyright Act 1994
[110] Section 2922 provides that copyright in a work is infringed by a person who does any restricted act. It further provides that references to the doing of a restricted act are to the doing of that act in relation to the work as a whole or any substantial part of it, either directly or indirectly.
[111] There was little reference to this provision in submissions and argument of the parties. The focus was on whether, in the circumstances of this case, there was copying of the copyright work “in any material form”.
[112] Whether a substantial part of a copyright work has been reproduced is a question of fact and degree. That is a question to be determined more on the quality than on the quantity of what is produced from the copyright work.23
[113] The Baro TV system, as explained in the affidavit evidence, enables Young’s New Zealand customers to receive the same broadcasts (but only in real time) as the Korean customers receive in Korea upon payment of cable subscriptions. There is no suggestion either in the evidence or submissions that the cable feed received by the New Zealand customers of Young through the Baro TV service is of anything
22 Refer [41] above.
23 Ladbroke (Football) Limited v William Hill (Football) Limited [1964] 1 All ER 465, 469;
Longman Group Limited v Carrington Technical Institute Board of Governors [1991] 2 NZLR
574 (HC) at 581.
less than a whole or substantial part of the broadcasts of MBC, TVB and KBS. Indeed it seems to be a perceived advantage of the Baro TV service that customers receive the broadcasts direct in real time and without “packaging” as is the case with the broadcasts provided under licence to New Zealand customers of World TV.
[114] The requirements of s 29(2) appear to be satisfied in the circumstances of this case.
Section 228 of the Copyright Act 1994
[115] I will now turn to consideration of the competing arguments on s 228.24
[116] It was not in dispute that s 228 deems a re-broadcaster to whom s 228 applies, to be a copyright owner. It was agreed that s 228 is directed to “reception of transmissions” and does not involve an element of “communication to the public”. The main focus of submissions was the meaning and application of “not entitled to do” in subsection 3(a) and (b).
[117] The plaintiffs rely on s 228 to provide protection for the fourth plaintiff, World TV, who rebroadcasts the first to third plaintiffs' programmes within New Zealand via the Sky network. They say that s 228 creates a "transmission right" which (by virtue of s 122) deems the rebroadcaster or retransmitter an owner of copyright in the broadcast. It is infringed by any person who falls within s 228(3).
[118] Mr Katz refers to associated definitions for “communication works” in s 3 and points to the evidence in Mr Ho's third affidavit to show that World TV receives and rebroadcasts the Korean based transmissions from MBC, TBV and KBS, and that the process is controlled at the New Zealand end by World TV. Therefore, Mr Katz says, World TV satisfies the requirements of s 228 and the extended definitions.
24 Refer [49] above.
[119] Mr Katz refers to BBC Enterprises Ltd v Hi-Tech Xtravision Ltd25 and other English authorities to show that s 228 (the equivalent of s 298 in the United Kingdom Act) is intended to protect those who do no more than re-broadcast or retransmit, while not necessarily being copyright owners of a broadcast in their own right. He cites Beldam J in the Court of Appeal (which was upheld by the House of Lords):26
I approach the construction of s 298 with these considerations in mind. The rights and remedies which are given are clearly intended to be in addition to the rights which a copyright owner has in respect of an infringement of copyright. A person who makes charges for the reception of programmes included in a broadcast may or may not be the person who is entitled to rights as a copyright owner. The reception of programmes included in a broadcast is not generally speaking an infringement of copyright by itself.
[120] Beldam J continues:27
Section 298 is intended to give the person who makes charges for the reception of programmes rights and remedies, similar to those of the owner of copyright, against a person who provides decoding equipment which will enable a person to receive the programmes without paying for them. I have no doubt that that is the purpose of the section and that the words 'when they are not entitled to do so' mean, as BBC Enterprises contend, 'when they are not authorized by them to do so'.
[121] He also cites Staughton LJ:28
A person who seeks to charge for programmes, or sends encrypted transmissions, has the right not to have others making apparatus or devices designed to be of use to persons not authorized by him to receive the programmes. The remedies for that right are to be the same as those of a copyright owner in respect of an infringement of copyright. It does not seem to me to matter whether the right is proprietary or not; but I do not think that it is, as it is not a right over property, although one remedy available is delivery up or seizure of certain articles.
[122] The plaintiffs submit that it is clear from the wording of s 228(2)(a) and (b) that the section confers on the person to whom the section gives protection as a transmitter (here World TV) the same rights as would be conferred on the owner of copyright as if the retransmitter was the owner of copyright, and that the rights given to the retransmitter are rights conferred on World TV in exactly the same way they
25 BBC Enterprises Ltd v Hi-Tech Xtravision Ltd [1990] 2 All ER 118 (CA).
26 BBC Enterprises Ltd v Hi-Tech Xtravision Ltd [1991] 3 All ER 257 (HL) at 127.
27 At 127.
28 At 123.
are conferred on BBC Enterprises and others in the English decisions. Therefore, they say, it is clear that the fourth plaintiff World TV has rights under the Act which it can enforce. Mr Katz submits: “The purpose of s 228 is effectively to deem the person that has the transmission right to be a copyright owner for the purpose of remedies”.
[123] Mr McBride responds that the defendants’ position is “simple”. Section 228 deals with defendants who import and/or deal in devices that enable persons to receive a transmission “when they are not entitled to do so” (s 228(3)(a) and (b)). Mr McBride submits that in this case there is no breach of s 228 because, in terms of s 228(3)(a) and (b), Baro TV’s customers are entitled to receive the Korean cable feed, because a cable subscription is paid in respect of each Baro TV customer. On that basis, he seeks to distinguish the English cases such as Hi-Tech, where the defendants effectively “hacked” into an encrypted signal, without any consent from the broadcaster.
[124] I do not accept that submission, for the same reasons as are set out in [72] and [73] above. But I also reject it because I consider it involves a misinterpretation of “not entitled to do so” in s 228.
[125] The plaintiffs contend that when s 228 refers to a person receiving a programme "when they are not entitled to do so", the person who is entitled to confer or withhold the entitlement must be the person referred to in subsection (1) who is making charges for the reception of programmes, in this case World TV. I consider the plaintiffs are correct on this point.
[126] Subsection (2) provides persons falling within subsection (1) with the same rights and remedies as the copyright owner, against persons referred to in subsection (3). For persons to come within subsection (3), each of subsections (a) and (b) of that subsection requires that the person who is receiving the programmes or transmissions be "not entitled to do so".
[200] Delay will often be disadvantageous for one, if not both parties. But in this case I do not consider the defendants have been prejudiced by the delay, nor that the plaintiffs are significantly responsible for it.
Other matters
[201] The comparative strengths of the parties’ cases falls for consideration. While I have been unable to determine a number of factual issues upon which the evidence of the experts is conflicting, I have concluded that there are serious questions to be tried on the copyright infringements alleged under s 16(1)(a) and (f) of the Act, namely copying and communicating to the public in breach of the copyright of MBC, TVB and KBS in their broadcasts, and also under the Fair Trading Act causes of action.
[202] I have found that the balance of convenience favours the plaintiffs though not overwhelmingly.
[203] Where other factors are evenly balanced the status quo should be preserved. The status quo is the situation that prevailed before the intervening acts of the
defendants which the plaintiffs seek to restrain. Even if the status quo were to include the defendants’ business which has been operating since September 2009 (which I do not accept), then it is a status the defendants have voluntarily taken upon themselves with full knowledge of the copyright owned by MBC, TVB and KBS in their broadcasts. In that situation the defendants’ interests must cede to the property rights of the plaintiffs which arise from the copyright they own in their broadcasts.
Orders
[204] There will be an interim injunction conditional as set out in [205] and [206], granted in favour of the first to third plaintiffs on the following terms:
Pending further order of this Court the defendants, their servants and agents are restrained 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 in trade or commerce within New Zealand offering to the public material broadcast by Munhwa Broadcasting Corporation, Television Broadcast Limited and Korean Broadcasting System.
c) Representing to the public whether in trade or commerce or otherwise that they are associated with Munhwa Broadcasting Corporation, Television Broadcast Limited and Korean Broadcasting System their servants, agents or subsidiaries.
[205] The above orders are conditional upon Munhwa Broadcasting Corporation, Television Broadcast Limited and Korean Broadcasting System filing forthwith in this court an undertaking signed by each of those companies in accordance with r 7.54 of the High Court Rules. (It shall be sufficient compliance with this order that undertakings are in the first place filed by a facsimile or scanned copy provided that
original copies are filed within five working days after the facsimile or scanned copies are filed in each case). Copies of the documents so filed are to be served on the solicitors for the defendants.
[206] The restraining orders set out above at [204] shall take effect seven working days after the three plaintiffs have filed the requisite undertakings as to damages as required in [205].
[207] If MBC, TVB and KBS shall not have filed the requisite undertakings on or before 20 January 2011 the orders in [204] shall lapse.
(Note: The periods specified in the orders are intended to take account of the impending statutory holiday period).
Costs
[208] Costs are reserved. The Judge who ultimately deals with the substantive proceedings will be in the best position to determine costs on this application and previous issues as to costs referred to in the minute of Venning J dated 6 May 2010.
Next steps
[209] The Registry is to list the proceeding in a Chambers list in February 2011 or as soon thereafter as time is available so that any directions or orders required to advance the proceeding to a substantive hearing may be made.
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