Last week the Advocate General gave his opinion in the second referral to come out of the TVCatchup litigation (C-275/15).
Background
The Claimants are well known national television broadcasters (ITV, Channel 4 and Channel 5). TVCatchup ("TVC") operates a website, which enables members of the public to watch live television on computers, smart phones and games consoles by intercepting the broadcast signal and live-streaming it via its website. The broadcasters claim that TVC infringes copyright by communicating the broadcasts to the public. In 2013 the Court ruled that 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.
The question now is whether TVC have a defence under s73 CDPA 1988, which permits reception and re-transmission of broadcasts without the authority of the copyright owner where a wireless broadcast made from within the UK is received and immediately re-transmitted by cable, to the extent that the broadcast is made for reception in the area in which it is retransmitted. Back in June 2011, Floyd J ruled that s73 applied in relation to retransmission of broadcasts by TVC via the Internet to end users, although it excluded transmission via any mobile phone network.
Questions referred
On appeal, Kitchin LJ sought a reference from the CJEU on the scope of the defence, essentially asking whether s73 CDPA was preserved under Article 9 of the InfoSoc Directive (2001/29). This states that the Directive is without prejudice to provisions concerning … "access to cable of broadcasting services…" so the specific question is whether s73 falls within the phrase "access to cable of broadcasting services". In addition, Kitchin LJ asked whether the concept of "cable" in Article 9 has a technologically specific meaning, restricted to traditional cable networks operated by conventional cable service providers or whether it includes functionally similar services transmitted via the internet.
AG Opinion
The AG gave his view that s73CDPA does not fall within Article 9 of the InfoSoc Directive. Article 9 does not permit exceptions to the rights in Articles 2-4 of the Directive (the exclusive rights of reproduction, distribution and communication to the public). The exceptions to these rights are the subject of exhaustive harmonisation under Article 5 of the Directive whereas Article 9 maintains provisions that apply in other areas. As s73 limits the exclusive right of communication to the public conferred in Article 3, (i.e. the core of copyright protection as harmonised by the Directive), it cannot fall within Article 9.
Section 73, which concerns "retransmission by cable", is not covered by the expression "access to cable of broadcasting services" used in Art 9. Accordingly, there was no need to rule on the exact meaning of "access to cable of broadcasting services" nor to decide if it covers Internet streaming. Nevertheless, the AG noted, by way of observation, that he did not consider the concept to be broad enough to include broadcasting by Internet streaming. In his view, the concept of "cable" within Art 9 is restricted to traditional cable networks.
Comment
We wait to see if the CJEU follows this advice, although in many respects the decision is now only of academic interest.
Following the reference, the Department for Culture, Media and Sport expressed a view that the section 73 exception is outdated and should be removed. It noted that section 73 was introduced to support the development of analogue cable infrastructure in the 1980s/90s (i.e. to facilitate retransmission of PSB broadcasts in areas where aerial reception was poor). As this is no longer relevant in today’s multi-platform/channel environment, it launched a public consultation on the proposed repeal. The Government published the results of the consultation in July 2016, concluding that s73 is no longer required because we have already achieved its objective of ensuring that Public Service Broadcast services are available throughout the UK. In addition, the section is harming PSBs through the revenue lost when internet-based companies exploit their content without paying them a copyright fee.
The Digital Economy Bill, which is workings its way through Parliament, now includes a proposal to repeal s73. The Digital Economy Bill had its first reading in the House of Commons in July. See our previous blog for more details.