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Solomon Telekom Company Ltd v SATSOL Ltd [2011] SBHC 88; HCSI-CC 358 of 2011 (8 September 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 358 of 2011

BETWEEN

SOLOMON TELEKOM COMPANY Ltd
First Claimant

And

TELEKOM TELEVISION Ltd
Second Claimant

And

SATSOL Ltd
Defendant

Mr Sullivan QC for the Claimants
Mr Radclyffe for the Defendant

Date of Hearing: 7th September 2011
Date of Judgment: 8th September 2011

Ruling on interlocutory application

1. The First Claimant ("STCL") has a licence to operate a television service [1] in Solomon Islands. The Second Claimant ("TTL") does not appear to similarly have a licence. Although there are arguments to suggest TTL has no locus standi in these proceedings the application presently before the court can be disposed of without making any decision on that point. Any reference to the Claimants in this ruling should be, for the time being, be taken as a reference to STCL in particular. Given the urgency of this application that will have to suffice for the purposes of the application.

2. The Defendant ("Satsol") also has a licence to operate a television service [2]. The Claimants and Satsol operate in two different ways. The Claimants operate two services, a free to air service and a subscription or pay TV service. All that is needed to receive programme content from the former is an antenna or television aerial and, of course, a television set or other apparatus to display the pictures. The Claimants have transmitters which broadcast a signal and that is picked up by the public. The viewer does not have to pay anything to the Claimants in order to watch the television programmes hence the description, free to air.

3. The Claimants also operate another pay TV service. In order to watch that the customer has to have a satellite dish, a television set and what is commonly called a set top box. The programme content is beamed from satellite. The content is contained in a signal which is encoded or scrambled. In order to watch a programme customers have to pay a subscription and in return they receive what is commonly called a smart card. It is like a credit card and has a microchip embedded in it. The microchip contains information stored digitally and when the smart card is inserted in the set top box it enables the software in the set top box to unscramble or decrypt the signal.

4. The Defendants have a similar system. The major difference is that Satsol broadcasts a signal locally and so no satellite dish is needed. A special aerial is required to receive the encoded signal which is fed to a set top box. The customer purchases a subscription and is given a smart card. Just as with the Claimants' pay TV, the Satsol smart card provides the electronic key to enable the set top box to unscramble the signal.

5. Both Satsol and the Claimants' free to air service, re-broadcast programme content received from other sources. Satsol have, apparently, been re-distributing the Claimants' programme content as well as content received from free to air satellite services in Australia. That has given rise to this case and this application.

6. The Claimants have paid, no doubt considerable sums, in order to have exclusive rights to broadcast television coverage of some sporting events, in particular matches played at or in the Rugby World Cup (shortly to start in New Zealand and hence the urgency of the application), the FIFA Beach Soccer World Cup and the (Australian) National Rugby League premiership. The Claimants have negotiated and paid for sub licences in respect of this programme content from licensees in Fiji. The arrangements are set out in Mr Beverley's sworn statement. Satsol have been or will be re-broadcasting television coverage of these sporting events it has received or will receive via Australian free to air satellite services. The re-broadcasting by Satsol is said to infringe the Claimants' exclusive rights and they ask the court to issue injunctions to prevent this from happening.

7. The nature of the injunctions being asked for is set out in the application filed 7th September. The relief sought is set out in paragraphs 1.a to e. Ignoring for the time being paragraph 1.e. they can be broken down into two main areas. That which is set out in paragraph 1.d. is the simplest to dispose of and I will do so first.

8. Briefly paraphrasing paragraph 1.d. the Claimants seek an order stopping Satsol from re-broadcasting television programmes originally transmitted by the Claimants or received by satellite via the Sky Pacific direct to home pay TV subscription service. The situation is covered by even the antiquated provisions of Solomon Islands legislation namely the Copyright Act [Cap.138]. In particular Part III and section 14(3). There is no doubt that the re-broadcasting of material originating from the Claimants' transmitters is an infringement of their copyright. The Claimants are entitled to an order preventing Satsol from re-broadcasting such material. I would also say that I am not convinced by the Defendant's arguments concerning the altruistic reasons for re-broadcasting. For slightly different reasons I am of the view that the Claimants' are also entitled to an order stopping Satsol from re-broadcasting material that originates from Sky Pacific satellite broadcasts. Although no evidence exists of the type or content of any agreement that a customer has to enter into with the Claimants in order to receive a smart card I am sure there is something of that nature. That probably has some prohibition on the re-broadcast of material. Even if there isn't there is clear evidence of the agency relationship between the Claimants and Fiji TV and of the latters "ownership" of the content of Sky Pacific transmissions. A re-broadcast of content that originates from Sky Pacific would be a breach of copyright and the Claimants are entitled to the injunction on those grounds.

9. The problem area is in respect of material that Satsol re-broadcasts but which originates from Australian free to air satellite transmissions. The Claimants say they have an exclusive licence in respect of some of that material. A number of agreements are exhibited to Mr Beverley's sworn statement. They clearly show the nature and detail of the arrangements between, for example, Rugby World Cup Ltd, Fiji Television Ltd and the Claimants. The effect of all the agreements and sub-licences is that the Claimants are granted "exclusive rights" to broadcast certain material in Solomon Islands. However, in all the agreements there appears to be a reservation of copyright to the original owner, see for example pages 57 and 88 of Mr Beverley's sworn statement. The provisions of section 14 of the Copyright Act do not seem to apply to such material.

10. The exclusivity of the rights to broadcast are also affected by provisions relating to "Accidental overspill". Neither Fiji TV nor the original owners of the material are liable to the Claimants if television coverage is available in Solomon Islands of the material covered by licences and sub-licences by the availability of transmissions originating outside of Solomon Islands. That is the situation here. It is also noted that the Claimants are not liable to Fiji TV or the original owners if their transmissions are available to areas outside of Solomon Islands. There are provisos but that is the general situation. It is quite possible, although I make no finding to that effect, the persons responsible for transmissions being available in Solomon Islands from outside of the territory would be liable to the original owners. It is quite possible, and again I am not required to and do not make any finding to that effect, Satsol are liable for breach of copyright to the persons who have made the transmission available within Solomon Islands from without the territory. It is quite possible Satsol are in breach of the original owners copyright. However, under our present legislation those situations do not give the Claimants the right to the orders they seek.

11. It is even possible the original owners and or licensees who have granted sub- licences are liable to the Claimants for breach of the agreements and sub-licences. Again, I do not see that situation as cloaking the Claimants with the right to the injunctions they seek, it is for those others to enforce their rights.

12. This is not to condone the apparent piracy undertaken by Satsol. If Satsol is broadcasting pirated material, material it has no lawful right to broadcast, it is something surely for the Telecommunications Commissioner and the Television Board to deal with. They are the "policemen" of the airways after all. If they do nothing they may end up as parties in these proceedings.

13. The application for orders in terms of paragraphs 1a, b, and c of the application filed on 7th September 2011 are refused. An order is made in the terms of paragraph 1d. Given the manner the case was argued on behalf of Satsol, is see no prejudice if an order was made in the terms of paragraph 1e.

14. At this stage a penal notice is superfluous. The normal remedies for contempt are adequate to ensure compliance with the orders made.

15. As the Claimants have both succeeded and failed in their application the proper order in respect of costs is that costs are reserved.

16. Given the nature of these proceedings I order that the parties be at liberty to apply on two days written notice.

Chetwynd J

^[1] See page 23 of the sworn statement of John Henry Howden Beverly which was tendered as Exhibit JHHB 1
^[2] See page 25 ibid.