March 26, 2021
The TuneIn case considers whether an online radio aggregation service, which links to the broadcast streams of thousands of music radio stations, is liable for infringing acts of communication to the public. The case has been characterised as a ‘test case’, raising “significant issues of copyright law”. It grapples with the balance to be struck between the fundamental rights of freedom of expression on the one hand and intellectual property on the other.
In its judgment of 26 March 2021, the Court of Appeal unanimously dismissed TuneIn’s appeal on all significant grounds. It also declined to follow TuneIn’s invitation to depart from a large body of EU case law.
Warner Music UK Ltd and Sony Music Entertainment UK Ltd, and the groups they represent, own or hold the exclusive licences to copyright in sound recordings of music.
TuneIn Inc. operates a global online radio service, which provides access to tens of thousands of music radio stations from around the world through its website and apps. TuneIn essentially acts as a ‘one-stop shop’ for users wishing to browse, search for and listen to radio stations. It aggregates links to radio station streams, categorises and curates station lists, and recommends stations to users based on their location and other factors.
The music companies contend that TuneIn itself requires a licence where it includes in its service radio stations that play sound recordings within their repertoires in circumstances where those stations are not licensed for reception in the United Kingdom. This was disputed by TuneIn on the basis that it does not transmit or host any music content and merely provides hyperlinks to radio streams which are freely available on the internet without any geographic or other restriction.
At first instance Birss J determined that TuneIn was liable for linking to foreign stations that are unlicensed for reception in the United Kingdom. TuneIn was also found to have authorised both infringing acts of reproduction by UK users who made copies of the claimants’ recordings using TuneIn’s ‘Pro app’, as well as acts of communication of the public by the operators of stations not licensed for the UK, and to be jointly liable with these parties. TuneIn appealed that decision on no less than 44 grounds and invited the Court to depart from EU case law on communication to the public.
Departure from EU retained law
The Court of Appeal declined to accept TuneIn’s invitation to exercise its powers under the European Union (Withdrawal) Act 2018 to depart from EU case law on hyperlinking, including Svensson and GS Media. The request was extended in oral submissions to an invitation to depart from the entire body of CJEU case law on communication to the public.
Arnold LJ, giving the leading judgment, set out eight reasons why the Court should not depart from the established principles laid down by the CJEU. Amongst other things, the Judge dismissed TuneIn’s argument that the provision of a hyperlink could not be an act of communication because it was not a ‘transmission or retransmission’. This was because communication to the public includes the ‘making available’ right, and so encompasses potential transmissions (not just actual transmissions). The Judge concluded that it was difficult to see why a hyperlink should not be covered, particularly in the cases of framing and in-line linking to a continuous stream of content.
Arnold LJ also observed that departure from the GS Media decision alone would not assist TuneIn as the claimants would argue both that the principles articulated in later CJEU decisions, such as Filmspeler, Pirate Bay and Renckhoff, would be sufficient to determine the issues in their favour, and that the principles in the earlier case law were sufficient.
The Master of the Rolls stated in his judgment that “[t]he wholesale departure that [TuneIn] suggested would, in large part, not anyway have helped it. … I do not exaggerate when I say that I regard this as a paradigm case in which it would be inappropriate for the Court of Appeal to exercise its new-found power to depart from retained EU law … the CJEU’s approach to the law of infringement of copyright by communication to the public is neither impeding nor restricting the proper development of the law, nor is it leading to results which are unjust or contrary to public policy”.
As to the substantive liability issues:
The Court of Appeal found that TuneIn’s service targets foreign stations at UK users. The Court rejected TuneIn’s arguments that, whilst its platform was targeted at the UK, the individual communication to the public of foreign stations was not.
Communication to the public
In relation to the ‘category 3’ stations, being stations licensed in their home territory pursuant to a statutory scheme, the Court upheld Birss J’s finding that TuneIn Radio is a “different kind of communication (in the sense that it has the features of aggregation, categorisation, etc. …) targeted at a different public in a different territory.” Even if the relevant statutory schemes were to amount to a form of “deemed consent” (in relation to which Arnold LJ expressed doubt) there was no reason to conclude that that authorisation extended to the UK public targeted by TuneIn. The Court of Appeal confirmed that the Judge did not fail to strike a fair balance in coming to this conclusion, stating that “striking a fair balance does not involve giving freedom of expression precedence over copyright, which is the effect of TuneIn’s argument.”
In relation to stations licensed for their home territory pursuant to consensual licences (which were not addressed specifically at first instance), the Court held that Birss J’s reasoning should apply equally. Absent evidence to the contrary (such as a licence whose terms have extra-territorial effect), the Court of Appeal held that the rightsholder would only have taken into consideration the local audience for the station when authorising the initial communication to the public by the foreign stations, and not UK users targeted by TuneIn’s links to the streams. Accordingly, TuneIn’s communication was to a new public.
Like Birss J, the Court of Appeal agreed that TuneIn could not be in a better position in respect of unlicensed stations, including stations operating in territories with statutory remuneration schemes that were not yet running or where no remuneration was being paid (‘category 2’ stations). These stations engaged the Court’s consideration of the knowledge presumption under GS Media.
Arnold LJ considered the presumption was clear: it was “that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder”. He considered that Birss J was entitled to conclude that the checks undertaken by TuneIn were generally inadequate to rebut the GS Media presumption in relation to unlicensed stations operating in exclusive rights regimes: “We were shown no evidence that TuneIn believed on reasonable grounds that [Capital FM Bangladesh and Urban 96.5 Nigeria] were licensed (or even operated lawfully), in the territory of origin. The furthest the evidence went was that TuneIn did not know that the stations were operating unlawfully; but that is not enough to rebut the GS Media presumption.” Arnold LJ considered that the judge was entitled to conclude that TuneIn had not rebutted the presumption in respect of the remaining category 2 stations for the same reasons.
The recent CJEU decision in VG Bild-Kunst did not change the Court’s assessment. Whilst TuneIn drew particular emphasis to paragraph 46, which suggests that the only way in which a rightsholder can limit its consent is by means of effective technological measures, Arnold LJ was clear that this passage must be understood in context. The Judge noted the CJEU’s finding that copyright owners cannot be faced with the choice of either tolerating unauthorised use of their works or surrendering use of them, including by licences, and that the paragraph 46 cannot remove the need for an individualised assessment in each case.
The minor point reversed on appeal relates to the finding that TuneIn’s provision of links to UK-licensed stations on the ‘Pro app’ to UK users, with the record function enabled, infringed the communication to the public right. The Court held that this communication involves the same ‘technical means’ as the original communication, namely the internet – the presence of a record function did not change that analysis. Whilst Arnold J was attracted by the Respondents’ arguments that the communication was to a ‘new public’, because the rightsholders would not have taken into account the possibility of users recording their repertoire, the argument did not ultimately hold sway. As observed in the judgment, however, the rightsholders did not grant a licence which extended to reproduction of sound recordings by users. Accordingly, that reproduction, including in respect of UK licensed stations, was an infringement of copyright for which TuneIn was jointly liable (see below). This finding therefore does not impact the scope of the injunctive relief ordered by Birss J.
The Court upheld Birss J’s findings on authorisation and joint tortfeasorship. In respect of the foreign stations, Arnold J noted that “[a]lthough [the fact that the stations are primarily liable] might at first blush seem a surprising conclusion where the foreign station was indexed by TuneIn without the knowledge or consent of its operator, the judge was correct to hold that it follows from the fact that the streams become targeted at the UK as a result of TuneIn’s intervention. The foreign radio stations can avoid liability by requiring that they be removed from TuneIn Radio or that they be geo-blocked to UK users.”
The dismissal of the appeal in all material aspects is clearly good news for copyright owners operating both in the music industry and in the wider creative industries. The Court of Appeal has refused permission to appeal, although TuneIn may apply directly to the Supreme Court for permission. There may therefore be more to come on this case.
The Court of Appeal judgment can be accessed here.