Reposted from DLA Piper’s Media & Sport Group bulletin

Editorial Team: Nick FitzpatrickDuncan Calow and Patrick Mitchell

Mr Justice Floyd has referred to the Court of Justice of the European Union (“CJEU”) the question of whether live streaming of television programmes over the internet is a “communication to the public” and therefore subject to copyright laws.

TV Catchup Limited (“TVC”) operate an internet based live streaming service of broadcast television programmes, including films, in which the copyright is owned by broadcasters ITV, Channel 4 and Channel 5.  TVC’s website allows members of the public to access live UK television on computers, games consoles and smart phones. There are over 50 channels available.

In November last year, with the threat of a copyright infringement action looming, TVC applied to the High Court for summary judgment against the broadcasters, on the basis that their claim would have no real prospect of success at trial.  TVC argued that in order to infringe copyright in a broadcast under section 20 of the Copyright, Designs and Patents Act 1988 (“CDPA 1988”) (“communication to the public”), the alleged infringer’s transmission must itself be a broadcast within the meaning of s.6 CDPA 1988.  Mr Justice Kitchin disagreed and the case proceeded to trial.

Last week, Mr Justice Floyd handed down the High Court’s judgment.  He provisionally agreed with the claimants’ contention that TVC’s streaming service is a “communication to the public” for the purposes of section 20 of the CDPA 1988, but considered that the principles set out in the leading CJEU authority on this point, the Rafael Hoteles case, did not go far enough to enable him to answer the question conclusively in the claimants’ favour.  He therefore referred the question to the CJEU.

Floyd J. also addressed the issue of whether TVC had reproduced a “substantial part” of the films and broadcasts in its buffers and on the screens of users.  This issue is currently awaiting judgment by the CJEU in the Football Association Premier League v QC Leisure case, in relation to the screening of live foreign broadcasts of Premier League matches in pubs.  Pending that judgment, Floyd J. expressed the provisional view that TVC had reproduced a substantial part of the films in its buffers and onscreen, but not a substantial part of the broadcasts.  Questions on these issues will also be referred to the CJEU, but are likely to be conclusively determined much more swiftly by the Premier League judgment.

Floyd J. also held that final judgment on TVC’s defence under section 28A of the CDPA (which permits in certain circumstances the making of temporary copies which are transient or incidental and an integral and essential part of a technological process, and which have no independent economic significance) should be deferred pending the outcome of the Premier League case; his provisional view is that the defence does apply to reproduction in the buffers (“it is reasonably clear that the reproductions in the buffers have no independent economic significance“), but he was less certain in relation to reproduction on users’ screens.