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This article was featured in Tech Bytes, our technology law newsletter.
The UK's High Court is to ask the Court of Justice of the European Union ("CJEU") whether it is an infringement of copyright if a website intercepts and live-streams a broadcaster's signal on the internet. The exact questions that will be referred to the CJEU were finalised by the High Court in a judgment issued on 14 November 2011.
The referral stems from a claim brought by ITV, Channel 4 and Channel 5 against TV CatchUp ("TVC"). The broadcasters claim that TVC's service infringes their exclusive right to communicate to the public their broadcasts and the films within those broadcasts. This right was introduced into copyright laws across the EU through the Information Society Directive. However its application to online live streaming is unclear.
This is not the first time that the CJEU has considered the "communication to the public" right. In a case known as Rafael Hoteles (C-306/05,) the CJEU ruled that the transmission of a broadcast signal through TV sets installed by the hotel in guest-rooms constituted “communication to the public”.
More recently, in October 2011, the CJEU had to consider the meaning of “communication to the public” under the Satellite Broadcasting Directive (Airfield v. Agicoa and SABAM (Joined cases C-431/09 and C-432/09). In that case, rights-holders had authorised broadcasters to broadcast their works by satellite. The question was whether that authorisation extended to a satellite operator that packaged and transmitted the broadcaster’s channel. The CJEU held that if the intervention of the satellite operator made the work available to a new public, not envisaged by the rights-holder when it granted authorisation to the broadcaster, then the satellite operator would be communicating the work to the public and would need separate permission from the rights-holder.
The High Court in the TVC case looked at the principles set out in Rafael Hoteles and Airfield, but decided that it wasn’t possible to determine from those cases whether TVC was infringing. The court noted that, in Airfield, it was significant that subscribers to the satellite channels would not have been able to receive the programmes without the intervention of the satellite operator. In that sense, the satellite subscribers were a "new public". In contrast, TVC's users were entitled to receive the original broadcasts in their own homes and on their laptops without TVC's intervention. The judge also said that it wasn't clear whether TVC's audience was additional to the public targeted by the broadcasters.
The High Court will also ask the CJEU whether it makes a difference if:
- The live-stream is delivered "point-to-point" rather than "point-to-multipoint"
- The live-stream includes pre-roll advertising, or "in-skin" advertising (within the frame but outside the viewing picture), but retains the original advertisements included in the broadcasts
- The service provider is acting in competition with the original broadcaster for advertising revenues.
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