By John Wilks and Catherine Beloff

The CJEU has handed down its decision on the copyright questions referred by the UK High Court in the long-running battle between ITV, Channel 4 and Channel 5 and TV Catchup (“TVC”). Copyright owners will be relieved that the CJEU has confirmed that streaming content via the internet constitutes the infringing act of communication to the public. 

Who is TV Catchup?

TVC offers an internet television broadcasting service. The service permits its members to receive, via the internet, live streams of UK free-to-air television broadcasts, including television broadcasts transmitted by ITV, Channel 4 and Channel 5 on their computers, tablets, smart phones and games consoles. Members can only gain access to content which they are already legally entitled to watch in the UK under their television licence. The service is geo-blocked to prevent reception outside the UK.

The TVC service is funded by advertising.

The Questions referred

The questions referred by Floyd J concerned the proper interpretation of Article 3(1) of the Information Society Directive (2001/29/EC), which sets out the communication to the public right: “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Floyd J asked the Court to opine on:

1. Whether the right of a copyright owner to authorise a “communication to the public” extended to a case where the owner had authorised the inclusion of its works in a terrestrial free-to-air service within a particular Member State or geographical territory within a Member State, and a third party (here, TVC) provided a service whereby members could receive an internet stream containing those works, in the same territory.

2. Whether it made any difference if:

· the third party’s server only allowed a one-to-one connection to each member;

· the third party’s service was funded by advertising;

· the third party was in competition with the original broadcaster for viewers and/or advertising revenues.

The CJEU’s decision

The Court’s answer to Question 1 is a resounding ‘yes’.

The Court noted that the principal objective of the Information Society Directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for use of their works. It follows that “communication to the public” must be interpreted broadly.

Article 3(3) also provides that authorising the inclusion of protected works in a communication to the public does not operate to exhaust the right to authorise or prohibit other communications of those works to the public.

Against this backdrop, the CJEU concluded that as the making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication, that transmission must be considered to be a ‘communication’ within the meaning of Article 3(1), and consequently requires the authorisation of the copyright owner. The CJEU did not accept, as a matter of fact, TVC’s submission that the making of the works available over the internet was merely a technical means to ensure or improve reception of the terrestrial television broadcast in its catchment area.

The CJEU went on to consider the meaning of ‘public’ in Article 3(1). The Court’s conclusions here mark a potentially significant departure from recent case law. In the SGAE, Football Association Premier League and Airfield and Canal Digitaal judgments, the Court required that the retransmission be to a ‘new public’. TVC argued that this requirement was not satisfied, as the recipients of the TVC streams were entitled to receive the original televised broadcasts, by virtue of holding TV licences. However, in the current case, the Court appears to have relaxed the requirement for a new public, concluding that “each of those two transmissions [the television broadcast and the internet stream] must be authorised individually and separately by the authors concerned given that each is made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for a public.”

In relation to the factors set out at Question 2, the Court concluded that none of these factors made any difference to its conclusions on Question 1.

Impact of the decision on TVC

Back in 2011, Mr Justice Floyd concluded that TVC could take advantage of the defence in section 73 of the Copyright Designs and Patents Act 1988 (reception and re-transmission of wireless broadcasts by cable) in relation to certain channels, except in relation to re-transmissions for reception by mobile phone. There will no doubt be further argument on this issue when the matter returns to the UK Court.