Currently, all 3D viewing available for consumers has to be done by wearing 3D glasses. However, there are technologies in various stages of development that enable you to see 3D images on a TV or other type of video display device without glasses, and recent breakthroughs in the industry have led to glasses-free 3D TVs (also known as autostereoscopic TVs) being touted as the next big thing.
This article looks at some of the legal aspects surrounding autostereosopic TVs, including whether the conversion of 2D content to a 3D format by glasses-free 3D TVs risks the infringement of copyright of the broadcast content, both from the manufacturers’ and consumers’/viewers’ perspectives.
How do glasses-free 3D TVs work?
Most autostereoscopic TVs work by projecting completely different signals or images to each of a viewer’s left and right eyes. That information is then sent to the brain, enabling it to create the perception of a 3D image. Glasses are not relied on to filter images in order to create a 3D effect.
Many autostereoscopic TVs also utilize face-tracking software to detect viewers’ positions in order for the above described 3D effect to be experienced by each and every viewer viewing the same content.
Copyright owner’s exclusive rights
Generally, the function of copyright law is to protect the copyright holders’ interests in the creative work they own. Section 7 of the Copyright Act 1987 (“CA”) makes certain types of works eligible for copyright: literary works, musical works, artistic works, films, sound recordings and broadcasts.
For purposes of this article, films and broadcasts are the two main categories of works to be considered as they form largely the types of viewing content displayed through televisions.
As far as films (along with literary, musical or artistic work) are concerned, the exclusive rights conferred to a copyright owner are as listed in Section 13 of the CA. The section gives exclusive rights to the reproduction in any material form, the communication to the public, the performance, showing or playing to the public, the distribution of copies to the public, etc., of the whole work or substantial part thereof.
The doing of any of the above acts without the licence of the owner of the copyright would constitute an infringement of the copyright, as stated in Section 36(1) of the CA. In view of the present scenario, the question we may have to be concerned with, more than the others, is whether the conversion from 2D to 3D could be seen as causing a reproduction of the original content in material form.
Exclusive rights in relation to broadcasts are described in Section 15 as the rights to control in Malaysia the recording, the reproduction, and the rebroadcasting, of the whole or a substantial part of the broadcast either in its original form or in any way recognizably derived from the original.
Reproduction in material form
Copyrights in films and broadcasts
Copyrights in a film are described and listed in section 13 of the CA. One of such rights is stated in (a) as the right to control “the reproduction in any material form” of the whole work or a substantial part thereof.
Is the presentation of a 2D material in 3D form within the meaning of ‘reproduction’ in the CA? Section 3 defines ‘reproduction’ as “the making of one or more copies of work in any form or version, …”. ‘Copy’ is defined in section 3 as “a reproduction of a work in written form, in the form of a recording or film, or in any other material form”.
The common thread in the definitions above is the requirement that the infringing material be reduced to a material form. ‘Material form’ is defined in section 3 as including “any form (whether visible or not) of storage …”.
As alluded above, autostereoscopic TVs only allow temporary reproductions of images that may be regarded as merely transient and incidental copies at best.
Based on this understanding, 3D viewing does not physically alter the original content viewed. Instead, the 3D function manipulates what is received by the left and right eye of the viewers to create a 3D viewing experience. It is the reception of different images of each of a viewer’s eyes which gives viewing the original content a 3D effect.
It should also be noted that most autostereoscopic TVs have face-tracking softwares to detect viewers’ positions in order for the above described 3D effect to be experienced by every viewer viewing the same content. This reasonably suggests that the glasses-free 3D technology does not alter or reproduce the original content viewed. What it may be doing is merely to alter the viewing experience on the receiving ends of the viewers’ eyes and that the original content displayed remains unchanged and may therefore be incapable of reduction into any material form whatsoever.
Section 15 of the CA describes the nature of copyright in broadcasts. It is stated that “copyright in a broadcast shall be the exclusive right to control in Malaysia the recording, the reproduction, and the rebroadcasting, of the whole or substantial part of the broadcast…”. As discussed earlier in the case of films, the meaning of ‘reproduction’ would entail the requirement of the infringing material being reduced to a material form. Hence, by a similar reasoning adopted for the case of films above, it may be argued here that 3D viewing of broadcasts does not create any alteration on the original broadcasts transmitted through the TV or PCs and therefore may not be infringing.
As to whether converting 2D broadcasts to 3D formats would constitute “recording’ or ‘rebroadcasting’ as stated in section 15, a similar line of argument from above may again apply. Since it has been contended that 3D alteration does not change anything physically on the original content, such a process should not ordinarily lead to any form of recording or rebroadcasting, as the 3D effect only takes place in the eyes of the viewers.
Legality of consumers viewing broadcasts in 3D
Generally, consumers are not penalised under the law for purchasing infringing copies or viewing infringing materials per se. Section 41(1)(d) of the CA provides for the offence of possession of any infringing copy used otherwise than for private or domestic purposes. Besides, section 41(2) adds that possession of three or more infringing copies of a work or recording in the same form shall give a presumption that they are for purposes other than private or domestic use.
Hence, apart from the offence of possession, it may appear that the law at present has not yet criminalised consumers’ behaviour in purchasing and enjoying infringing materials. Moreover, following the contentions above, in that the function of 3D TVs is merely to alter viewers’ viewing experience literally through their eyes, it may unlikely be considered an infringing act, as it is arguable that no tangible infringing materials are being created or purchased here.
ii) Fair dealing and private and domestic use
Fair dealing is one of the defences that can be relied on to rebut infringement. As provided for under s. 13(2) subparagraph (a), fair dealing is described as being for the purposes of non-profit research, private study, criticism, review or the reporting of current events. Subparagraph (gg) and (ggg) allow for the making of a sound recording or of a film of a broadcast for private and domestic use.
As mentioned earlier, it is likely that the function that 3D TVs perform neither modifies the original content nor saves them in any material form. However, assuming unfavourably that they do perform these functions, the fair dealing and ‘private and domestic use’ defences may then operate to justify certain uses. In analogy, it may be suggested that this is similar to the case of CD burners, whereby so long as the users do not misuse the CD burners to produce copies of materials for non-permitted purposes, the viewers are legally safe to use the technologies. In the case of 3D TV/PCs, the same position may apply.
In any event, given that the main function of the 3D TV/PCs is not to modify the original content in a physical manner but merely to change the viewing effect felt by viewers’ eyes, the viewers/consumers may not, in the first place, even be able to retain the 3D contents in any material form as they appear to be intangible and transient. Therefore, the defences may only need to be relied on in the event the act of copying and reproducing has been successfully established, which in this case may be unlikely.
Minimising risks of infringement
The incorporation of a ‘2D/3D’ button, making the 3D function a selection or a choice for consumers, is advisable. At any measure, this feature may help distance TV manufacturers from any direct liability, if any, and leaves the option of changing between 2D to 3D to the consumers.
In addition, manufacturers may wish to exclude, as much as possible, any saving or storing function on the devices, as this may invite claims that the products are facilitating the reproduction or the making of copies of viewed contents.
Ultimately, as one may have identified from this article, the preliminary notion for copyright infringements is that the original work must have been copied into a material form in order to found an infringement claim. Otherwise, there would not be any tangible material to compare with the original work in the first place. Hence, as long as the technology only provides a temporary visual-altering function as and when a program is viewed and does not maintain any material record, the 2D-3D technology may be said to be non-infringing of any copyrights.