The Court of Justice of the European Union ("CJEU") has issued a ruling on the second reference in the long running TVCatchup matter holding that section 73 of the Copyright, Designs, and Patents Act 1988 ("CDPA") is incompatible with the InfoSoc Directive (2001/29). The decision essentially agrees with the Advocate General's ("AG") opinion, about which we blogged in detail last September (see here).
As a quick re-cap, the claimants in this matter are a coalition of well-known national television broadcasters (ITV, Channel 4 and Channel 5). The broadcasters claimed that TVCatchup ("TVC") infringed copyright by intercepting their broadcast signals and live-streaming them to the public through a website which enabled members of the public to watch live television on computers, smart phones and games consoles. In 2013 the Court ruled that a website operator who intercepts and live-streams a TV broadcaster's signal on the Internet was communicating the copyright works to the public, which must be authorised by the copyright owner. However, the court also found that TVC had a defence under s.73 CDPA, a carve out which permits reception and re-transmission of broadcasts without the copyright owner's consent where there is a re-transmission by cable, to the extent that the broadcast is made for reception in the area in which it is retransmitted. The broadcasters then appealed to the Court of Appeal arguing that the s.73 defence should not apply to internet streaming. The question of what was meant by the expression "access to cable of broadcasting services" under Article 9 of the InfoSoc Directive and whether it was compatible with section 73 of the CDPA was then referred further up the chain to the CJEU.
The CJEU ruling
In its ruling, consistent with the AG's opinion, the CJEU ruled that s.73 CDPA does not fall within Article 9 of the InfoSoc Directive as "retransmission by cable" is not covered by the expression "access to cable of broadcasting services" used in Art 9 and that the s.73 CDPA defence is therefore incompatible with the InfoSoc Directive. In basic terms, this means that retransmissions of broadcasts of the sort being undertaken by TVC is not allowed without the broadcasters' consent and they cannot avail themselves of any defence or exception.
This is a good decision for broadcasters as it confirms that they will be granted a high level of protection - one of the principal objectives of the InfoSoc Directive - and rewarded for their efforts and investment in programme-making. The case also highlights how discrepancies can arise when European Directives are implemented at a national level and inevitably vary from member state to member state. It is reassuring that TVC has not been allowed to rely on outdated legislation that was introduced to support the development of analogue cable infrastructure in the 1980s/90s.
It is also important to note that the decision is now largely of academic interest only. Following the reference, it was decided to repeal s.73 CDPA and the Digital Economy Bill, which is working its way through Parliament, now includes a proposal to repeal s.73 (about which we blogged last August - click here).
We'll keep you posted on the progress of the Digital Economy Bill.
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