-8principal intention of users of that online location. Purpose may be
distinct from motive. An online location may have the ‘primary
purpose’ of infringing, or facilitating the infringement of copyright
even if the operator of the location derives a commercial advantage or
profit from the operation of the location. For example, where an online
location has copyright infringement as the principal activity for which
it exists and the principal reason for attracting visits to the online
location, the fact that the motive or incentive of its operator is to draw
profits from advertising revenue does not mean that its primary
purpose is to profit from advertising rather than to infringe copyright.
(emphasis added)
[49]
32
The purpose of the online location may be ascertained by a consideration of
the use that is or may be made of it. If the Court is satisfied that the principal
activity for which the online location is used or designed to be used is copyright
infringement or the facilitation of copyright infringement, then it will be open
to conclude that the primary purpose of the online location is to infringe, or to
facilitate the infringement of, copyright.
The target online locations provide the streaming devices with the software that they require to
stream the content that is broadcast by the TVB in Hong Kong. The content of the broadcast
is stored on servers that allow it to be streamed between one to four minutes after it is broadcast
by TVB on free-to-air channels in Hong Kong or at some later time using the video on demand
facility. Most of this content consists of cinematograph films (feature films or episodes of
television series) made by TVB or third parties together with various live programs that,
although not pre-recorded, still contains some pre-recorded segments. These live programs
include news, weather, finance and business content that will often include segments in which
a television presenter will read from a script prepared by the presenter or other employees of
TVB.
33
A significant proportion of the content that can be streamed by using the streaming devices and
the facilitating applications comprise cinematograph films the copyright in which is owned by
the applicants. The evidence indicates that approximately 20% of the content broadcast by
TVB in Hong Kong is likely to fall within this category.
34
In addition, the evidence indicates that approximately 30% of content broadcast by TVB in
Hong Kong comprise cinematograph films made by third parties for which TVB has nonexclusive licences permitting TVB to broadcast them in Hong Kong. These third party
copyright owners include:
•
Fox Networks Group Asia Pacific Limited – which is the exclusive licensee of
copyright in Australia of a television series entitled “Nothing Gold Can Stay”;
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