The Court of Justice of the European Union ("CJEU") has ruled that television broadcasters may prohibit the retransmission of their programmes by another company via the Internet.
A website operator who intercepts and live-streams a TV broadcaster's signal on the Internet is "communicating the copyright works to the public", which must be authorised by the copyright owner.
ITV Broadcasting v TVCatchup (C-607/11)
The Claimants are well known national television broadcasters (ITV, Channel 4 and Channel 5). The Defendant ("TVC") operates a website, which enables members of the public to watch live television on computers, smart phones and games consoles. It does this by intercepting the broadcast signal and live-streaming it via its website. The broadcasters claimed that TVC had infringed copyright by communicating the broadcasts to the public.
Mr Justice Floyd in November 2011 confirmed that the CJEU needed to clarify the scope of the right to prohibit a communication of copyright works to the public. In particular, whether the right allowed a broadcaster who had included its works in a terrestrial TV broadcast to prohibit a third party from enabling subscribers, who could lawfully watch the broadcast on their televisions, to receive the broadcast via an internet stream.
Is there a Communication?
Recital 23 of Directive 2001/29 (the "InfoSoc Directive") states that the right of communication to the public covers "any transmission or retransmission of the work to the public by wire or wireless means, including by broadcasting". In addition, by Article 3.3 of the InfoSoc Directive, authorising the inclusion of protected works in a communication to the public does not exhaust the copyright owner's right to authorise or prohibit other communications of those works to the public. The CJEU therefore held that, when a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must be individually authorised by its author.
In coming to this decision, the CJEU noted that the principal objective of the InfoSoc Directive is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works. It follows that "communication to the public" must be interpreted broadly.
A mere technical means to ensure or improve reception of the original transmission in its catchment area does not constitute a communication to the public. However, TVC's intervention in this case was clearly not intended to maintain or improve the quality of the transmission.
Is the Communication to "a public?"
To infringe, a communication of protected works must also be to a "public". From CJEU case law this means "an indeterminate number of potential recipients" and implies a fairly large number of persons. The CJEU noted that it is important to ascertain the number of persons who have access to the same work at the same time and successively. In this case, the retransmission of the works over the Internet is aimed at everyone in the UK who has an internet connection and UK TV licence. This is an indeterminate number of potential recipients and implies a large number of persons. It was irrelevant whether the potential recipients access the communicated works through a one-to-one communication because that technique does not prevent a large number of persons having access to the work at the same time.
The CJEU distinguished the cases of Airfield v Agicoa and SABAM (C-431/09 and C-432/09) and FA Premier League where there was a requirement that there must be a "new public". In those cases, the operator has made accessible a broadcast to a new public which was not considered by the authors when they authorised the broadcast in question. In this case, there was a terrestrial broadcast and an internet stream, which use specific technical conditions and different means of transmission, each of which needs to be authorised individually and specifically by the author. In those circumstances it is no longer necessary to examine the requirement for there to be a new public.
The CJEU also confirmed that it makes no difference whether the retransmission is funded by advertising and of a profit-making nature. Similarly, it is immaterial whether the original broadcaster and operator responsible for the subsequent retransmission are in a competitive relationship.
Copyright issues connected with internet streaming are always complex. However, on the facts, the decision appears sensible. It would concern many in the media industry if companies like TVC were allowed to intercept broadcast signals without authority and retransmit them for commercial purposes.
Rightsholders will certainly welcome the decision as it confirms a wide principle that they need to authorise every transmission or retransmission of their copyright works using specific technical means. This allows them to continue to control how the public views their broadcasts, even after they have been communicated to a wide section of the population. The judgment also envisages rightholders having the right to license multiple uses of their works. The CJEU has emphasised that authors should benefit from a high level of protection and the right to authorise "communications to the public" should be interpreted broadly.
The judgment also clarifies that when a retransmission uses a specific technical means, there is no need for there to be a communication to a "new public". This again will be welcomed by many who have found previous caselaw on this topic confusing and difficult to apply.
The ruling comes as no surprise, had it found in TVC's favour, this would have struck at the very heart of broadcasters' business models and indeed at the principles of copyright law which enable copyright owners to control the communication and exploitation of their works.
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