March 6, 2017

The case concerns whether live internet streaming of free-to-air TV channels is lawful or not.

TVCatchup operated a website through which viewers could watch live streams of some free-to-air-TV channels. The claimants in the case, a collection of broadcasters and TV content providers, alleged that TVCatchup had infringed their copyrights in films and broadcasts by reproduction and by communication to the public. TVCatchup denied infringement. It also raised various defences, including under s 73 of the Copyright, Designs and Patents Act 1988, which permits the cable retransmission of some broadcasts within their intended reception areas.

In 2011, Mr Justice Floyd (as he then was) asked the CJEU whether internet streaming of broadcasts to members of the public who were entitled to access the original broadcast signal using their own TV sets or laptops in their own homes, amounted to “communication to the public” within the meaning of the Copyright Directive.

In 2013, the CJEU held that the retransmission of a programme did indeed amount to, under certain conditions, “communication to the public” of copyright works, which needed authorisation from the author. Accordingly, the TV broadcasters could prohibit the retransmission of their programmes via the internet.

Lord Justice Floyd followed the CJEU’s judgment, but he also held that TVCatchup was entitled to a defence under s 73 CDPA in relation to the streaming of its public service channels insofar as those streams were to users situated in the region to which the original broadcasts were made. He understood, however, that it was not completely clear whether s 73 actually applied to internet streaming. Accordingly, he granted the broadcasters permission to appeal the point.

The broadcasters argued before the Court of Appeal that the defence under s 73 did not extend to internet transmissions and was restricted to transmissions on dedicated cable networks operated by conventional cable programme providers.

The Court of Appeal said that the broadcasters’ arguments raised a difficult question as to the scope of Article 9 of the Copyright Directive, which concerns the continued application of other national, legal provisions, and referred the matter to the CJEU.

Essentially, the Court of Appeal asked whether Article 9, and specifically the concept of “access to cable of broadcasting services”, must be interpreted as permitting national legislation, which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.

The CJEU said that it was “apparent from the very term ‘access to cable’” that the concept was “different from that of ‘retransmission by cable’”, since only the latter concept designated the transmission of audiovisual content.

Further, Article 1(2)(c) already deals expressly with “cable retransmission” and excludes from its scope other EU law provisions governing that question.

In addition, the principal objective of the Copyright Directive is to establish a high level of protection for authors, allowing them to obtain an appropriate level of reward for the use of their works, including on the occasion of “communication to the public”. The CJEU has already ruled in this case that the concept of “communication to the public” in Article 3(1) of the Copyright Directive must be interpreted broadly and that a retransmission by means of an internet stream constitutes such a communication.

It followed, therefore, the CJEU said, that in the absence of the consent of the author, such retransmission was not permitted unless it fell within the scope of Article 5, which sets out an exhaustive list of exceptions and limitations to the right of “communication to the public”. It was common ground in this case that it did not.

As for Article 9, it was apparent that it was intended to maintain provisions applicable in areas other than that harmonised by the Directive. Indeed, interpreting Article 9 to the effect that it permitted retransmission without the author’s consent, in cases other than those provided for in Article 5, would run counter not only to the objective of Article 9, but also to the exhaustive nature of Article 5, and, consequently, would be detrimental to the principal objective of the Directive, i.e. to establish a high level of protection for authors.

The answer was, therefore, that Article 9, specifically the concept of “access to cable of broadcasting services”, should be interpreted as not permitting national legislation, which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.

It should be noted that, as previously reported in N2K, s 73 CDPA is shortly to be repealed. (Case C-275/15 ITV Broadcasting Ltd v TVCatchup Ltd (1 March 2017) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).