MEASAT BROADCAST NETWORK SYSTEMS SDN BHD v LUI KIM SENG

Case Significance

Applies the communication-to-the-public right under sections 13(1)(aa) and 36(1) of the Copyright Act 1987 to the sale of TV boxes pre-installed with software giving access to a broadcaster's protected content: such sales infringe copyright, and the court allowed the claim with costs and ordered damages to be assessed.

This High Court decision at Kuala Lumpur, delivered by Judge Adlin Abdul Majid, concerns copyright infringement through the sale of television boxes pre-loaded with software giving access to a broadcaster's content. The plaintiff, Measat Broadcast Network Systems Sdn Bhd, provides satellite broadcasting services under the trade name "Astro". By its originating summons it sought a declaration that the defendant — a sole proprietor trading under the business name KS Home Gadgets — had infringed the plaintiff's copyright by selling, distributing or providing TV boxes that allowed users to access the plaintiff's content, together with an injunction to restrain further infringement. The central question was whether the sale of such devices amounted to an unauthorised communication of the plaintiff's works to the public and so infringed the plaintiff's copyright under the Copyright Act 1987.

The court found infringement and allowed the originating summons. Applying section 13(1)(aa) and section 36(1) of the Copyright Act 1987, it held that supplying TV boxes pre-installed with an application that enabled users to view the plaintiff's protected content, without subscribing to the plaintiff's services, engaged the plaintiff's exclusive right of communication to the public and constituted infringement. It rejected any suggestion that the defendant was unaware of the software's function, observing that one of the main selling points of the devices was precisely that they came pre-installed with the application enabling such access, so that it was implausible the defendant did not know the boxes were sold for that very purpose. The court accordingly allowed the originating summons with costs and ordered that damages be assessed. The reasoning treats the act of supplying a device configured to deliver protected content as itself part of the infringing communication, rather than as a step too remote from the ultimate viewing to attract liability, so that a trader cannot escape responsibility merely because it is the end user who presses play. The judgment is a useful application of the communication-to-the-public right under the Copyright Act 1987 to the sale of pre-configured streaming devices that circumvent a broadcaster's subscription model.