Defining "the public" in copyright disputes

Tony Yeo, director at Drew & Napier, said Singapore has no definition of “the public” when the issue of making something “freely available to the public” is being discussed, adding that this contrasts with the position in Japan.

He pointed to the case in Singapore of RecordTV v MediaCorp TV, in which RecordTV used an internet-based digital video recorder to make MediaCorp programs available online. The court of appeals found that the registered users did not constitute “the public” because the communications were made “privately and individually”.

“This is an issue touched on by the Aereo case, and that went the other way,” said Yeo. Perhaps if Aereo had come out earlier, the Singapore decision might have gone the other way.”

Fellow panellist Dale Nelson of Warner Brothers noted the language of the Aereo decision talking about performance being activated at a “’turn of the knob’—a click on a website”. “The Aereo decision found direct liability for public performance so I think it provides an opportunity to rethink some of the decisions that have been made about direct infringement,” Nelson said.