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Kum Kee v Television Kiribati Ltd [2006] KIHC 92; 20-06 (4 September 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 20 of 2006

Between:

PETER JONG KUM KEE
Plaintiff

And:

TELEVISION KIRIBATI LTD
Defendant

For the Plaintiff: Ms Taoing Taoaba
For the Defendant: Mr David Lambourne, Solicitor General

Date of Hearing: 28 August 2006

JUDGMENT

Several preliminary matters.

In the course of the hearing it became clear that the plaintiff should be Mr Peter Jong Kum Kee personally not Mr Kum Kee trading as Peter and Sons Co. Ltd. It also appeared that the correct name of the defendant is now Television Kiribati Ltd, not Telecom Kiribati Ltd. Pursuant to O 30 r 12 the name Peter Jong Kum Kee is substituted as plaintiff in place of Peter Kum Kee t/a Peter & Sons Co. Ltd and the name of the defendant changed to Television Kiribati Ltd.

Paragraph 1 of the Statement of Claim alleges the Copyright Act (UK) 1956. At the beginning of the hearing the Solicitor General submitted that the action is pursuant to the Copyright Act (UK) 1911 not the 1956 Act.

On the 24th June 1912 the 1911 Act was extended to the Gilbert and Ellice Islands Protectorate by Order in Council. Paragraph 41 of the 7th schedule of the 1956 Act provided for the 1911 Act to remain part of the law of the then Gilbert and Ellice Islands Colony, "so long as it formed part of the law of that country". The 1911 has remained part of the law of Kiribati. The Solicitor General pointed out the reference in sections 3(1) and (5) of the Copyright Ordinance to the Copyright Act 1956. He argued that the references are made per incuriam, mere clerical errors and are not sufficient to apply the 1956 Act to Kiribati.

Ms Taoaba did not offer any argument to the contrary.

The Copyright Act (UK) 1911 is the law to be applied in this case.

Mr Peter Kum Kee, by agreements with them, is the owner of the copyright of works of artists using the names "Te Nati ni Banaba ma Rabi Ngkai" and "Taatoka Asafo". Mr Kum Kee has in his studios produced CDs of their works for sale in Kiribati. It was noticed, some time after the CDs went on sale, that, although not many copies had been sold, the songs on the CDs were to be heard all over the place.

The defendant is the owner and operator of an internet café in Bairiki: eight computers are available in the café for the use of the public. In December last year, to use the computer for up to an hour the charge was $4: to go on the internet the charge was $6 for an hour.

A member of the public may go into the café and arrange to use one of the computers. The staff set it up and leave the person to use it. Before use the appropriate fee is paid and a receipt issued. The café has up to 30 customers each day.

Last December Keaki Inatio and Laurence Peter Kum Kee went together to the café. They paid $4 and received a receipt. Keaki told the staff they wanted to check whether songs on the CDs of their artists, "Te Nati ni Banaba ma Rabi Ngkai" and "Taatoka Asafo" were on the computer. Lawrence said they asked if they could record their songs. Nei Terotee Tunee, the office assistant who served them, said she could not remember what they asked to do.

Keaki and Laurence took a blank CD with them. They soon found what they were looking for, their songs on the desktop of the computer. They burned a CD of them. Nei Terotee who does not know how to burn a CD was not sure where the songs Keaki and Laurence found had come from or who put them on the computer. There is no evidence as to who was responsible for putting the songs, the copyright in which is owned by the plaintiff, on to the computer.

As paragraphs 6 and 7 of the Statement of Claim are drawn, before the hearing I had the impression that the defendant was alleged to be selling pirated copies of the CDs over the counter. That is not the evidence. The evidence is that Keaki and Laurence, as could anyone, went into the internet café, arranged to use one of the computers, paid their $4 and used it. What use they made of the computer was left to them: the defendant did not enquire into that. The two men paid no more for burning the CD than they would have for making any other use of the computer. They told the defendant that they wanted to burn a CD but they did not make any complaint about finding those particular songs on the computer.

In her address Ms Taoaba argued that the internet café owner was responsible for everything on the computer. Songs in breach of copyright were on the computer. The defendant was liable to the plaintiff for breach of copyright.

The Solicitor General cited two English authorities - C.B.S. Inc and Another v Ames Records & Tapes Ltd, (1982) 1 Ch 91 and CBS Songs Ltd and Others v Amstrad Consumer Electronics plc and Another [1988] UKHL 15; (1988) 2 All ER 484 - and a Canadian case, CCH Canadian Ltd v Law Society of Upper Canada (2004) 236 DLR (4th) 395.

McLachlin CJ in the Canadian case followed the two earlier English authorities. The Great Library at Osgood Hall in Toronto provides a photocopying service for Law Society members, students and others. Copyrighted material had been copied in breach of copyright. The owner of the copyright, CCH Canadian Ltd complained: it alleged that the Great Library was liable for the breach of copyright by making the copyrighted material available for copying on its equipment. McLachlin CJ held that this was not so:-

A person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law. (Paragraph 38)

In so holding, the Chief Justice, preferring the English authorities, did not follow the decision of the High Court of Australia in University of New South Wales v Moorhouse ((1975) 133 CLR 1), saying that it was "inconsistent with previous Canadian and British approaches to this issue".

Moorhouse was decided by a bench of three, albeit a strong bench - McTiernan ACJ, Gibbs and Jacobs JJ. Gibbs J, with whom McTiernan ACJ agreed:-

It seems to me to follow from these statements of principle that a person who has under his control the means by which an infringement of copyright may be committed - such as a photocopying machine - and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use (@ p.13).

A much more stringent requirement on the provider of the copying service, whatever form that service may take, photocopier, computer or another. Just what Ms Taoaba submitted.

Mr Lambourne reminded that me that pursuant to section 6 of the Laws of Kiribati Act, the common law of Kiribati is the common law of England: I should adopt the interpretation of the law as in the English cases and the Canadian case. I accept that this is so.

The defendant is not liable to the plaintiff merely by providing the facilities in the internet café which allows copyrighted material to be copied and subsequently pirated, as the plaintiff complains that the songs on the two albums have been.

The pirating of copyright material is a world wide phenomenon, not only a problem in Kiribati. Yet following the English authorities (and being in the good company of the Canadian Supreme Court in doing so) the solution is not by putting a heavy burden on the operators of, in this case, an internet café, a burden which would result in a lesser service to the public.

It may be of some comfort to the plaintiff to know that since last December, the defendant has cut down the opportunity to burn CDs from material wrongly on the computer. Sam Maunga, IT manager for the defendant, gave evidence that new virus free software has this year been introduced. All material in each computer is now cleared at every midnight making the window of opportunity to copy material on the computer by burning a CD only a few hours.

There will be judgment for the defendant.

Dated the 4th day of September 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice