Questions narrowed down in internet streaming referral
This article was included in the winter 2011/12 issue of snIPpets - the intellectual property newsletter.
Following the recent ruling by the Court of Justice of the European Union ("CJEU") in Football Association Premier League v QC Leisure, the High Court has now confirmed the questions to be referred to the CJEU in the ITV v TV Catchup live internet streaming dispute. Taking into account the FAPL ruling, the original questions to be referred have now been narrowed down with the High Court deeming it appropriate to only refer questions to clarify what is meant by communicating a copyright work to the public.
The Claimants are all well known national television broadcasters (ITV, Channel 4 and Channel 5). The Defendant operates a website which, despite its name, enables members of the public to watch live television on computers, smart phones and games consoles. The Claimants alleged copyright infringement on the basis that this was a communication to the public of their broadcasts and also alleged infringement by transient copying in the Defendant's servers and by display on its users’ computer screens.
The case has been running for sometime now. In July of this year, Mr Justice Floyd expressed provisional views on certain issues, but before giving final judgment, decided to refer questions to the Court of Justice of the European Union ("CJEU") concerning what is meant by "communication to the public" of films and broadcasts and "reproduction of a substantial part" of broadcasts in memory buffers and on users' screens. In the July judgment, Mr Justice Floyd noted that the meaning of the term "reproduction in part" was the subject of an existing reference to the CJEU in the FA Premier League case. He said that the facts in the present case were more in favour of a finding of "reproduction in part" than the facts of the FA Premier League case, at least in so far as the storage of films in the memory buffers was concerned, because longer sections of the films were being stored.
The CJEU in the FA Premier League case has now ruled that copyright owners do have the exclusive right to authorise or prohibit direct or indirect reproduction of their content in the form of “transient fragments of the works within the memory of a satellite decoder and on a television screen, provided that those fragments contain elements which are the expression of the authors’ own intellectual creation…"
Revised High Court referral to CJEU
A further judgment in this case was handed down by Mr Justice Floyd in November concerning whether, in light of the FA Premier League case, he should still refer the questions from the July judgment to the CJEU.
In light of the FA Premier League decision, Mr Justice Floyd decided that the question he originally referred to the CJEU on "reproduction in part" was no longer necessary. He did however decide to refer a question on whether the right to authorise or prohibit a communication to the public of films and broadcasts, which had been authorised for inclusion in terrestrial television broadcasts, extended to a case where a third party enabled individual subscribers, who could lawfully receive the broadcast on their televisions, to log on to a server and receive the broadcast via an internet stream.
As this case ably demonstrates, copyright issues connected with internet streaming are extremely complex. The latest judgment from Mr Justice Floyd does not actually clarify matters and the position is still far from resolved. The judgment does however narrow the scope of the questions asked of the CJEU in the hope of yielding a more focused response. We now await the decision of the CJEU.
Michael Sweeney, Solicitor, IP Protection and IP Enforcement and Litigation at Fieldfisher.