- 11 42
As to the various considerations relevant to the exercise of the discretion in this particular
matter, I think the following matters should be given most weight in determining whether to
make the blocking orders sought:
•
flagrancy of the infringements;
•
impact on persons likely to be affected;
•
availability of other remedies;
•
proportionality of response; and
•
compliance with s 115A.
Flagrancy
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There may be many people who use the streaming devices to view TVB broadcasts who do not
appreciate that they are infringing copyright when doing so. Because the content made
available by means of the streaming devices using the relevant software is available in Hong
Kong in the form of free to air television broadcasts, there may be some users, perhaps many,
who are unfamiliar with copyright law, and who do not appreciate that by using the streaming
devices to view the TVB broadcasts in Australia that they are infringing copyright in feature
films, television series, and pre-recorded segments included in the TVB broadcasts.
44
Be that as it may, I regard as flagrant the copyright infringements of the persons who have
made the TVB broadcasts available online, including those persons responsible for the
establishment and maintenance of the target online locations that make it possible for users of
the streaming devices to view the TVB broadcasts either in close to real time or at some later
time using the VOD service.
Impact on persons likely to be affected
45
I suspect (though there was no evidence of this) that there will be some people who use the
streaming devices to view television programs which they may have grown accustomed to
watching for free by viewing TVB free-to-air channels in Hong Kong. It may rankle some of
these people that they might no longer be able to watch these TVB broadcasts in Australia free
of charge or, at least, that the Court is being asked to make orders that may make it more
difficult for them to do so. However, the suggestion that this would impose an undue burden
or hardship on users of the streaming devices is really no different from saying that they should
be permitted to enjoy the same content for free that other users of TVB Australia’s pay-tv
service are required to pay to view. The unfairness inherent in this form of “free riding” extends
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