On 14 November, Mr Justice Floyd handed down a further judgment in ITV Broadcasting & ors v TVCatchup Limited. A copy is available on the web site of Hogarth Chambers (that web site is also the source of much of this report). The ruling asks the European Court to determine whether live Internet streaming of free-to-air TV channels is lawful.
The defendant, TVC, operates a web site through which viewers can watch live streams of some free-to-air-televisions channels. The claimants, a collection of broadcasters and TV content providers, alleged that TVC had infringed their copyrights in films and broadcasts by reproduction and by communication to the public. TVC denied infringement and, alternatively, relied on a defence relating to transient copies (under s28A of the Copyright Designs and Patents Act 1988) and a defence that permits the cable retransmission of some broadcasts within their intended reception areas (under s 73).
Floyd J gave a first judgment on 18 July 2011, in which he proposed a reference to the CJEU. A further hearing was convened to consider the impact on that potential reference of the earlier decisions of the CJEU in Football Association Premier League Ltd v QC Leisure (Joined Cases C-403/08 and C-429/08 – ‘FAPL‘) and in Airfield NC and Canaal Digital NV v Sabam and Airfield NV v Agicoa Belgium BVBA (Joined Cases C-431/09 and C-432/09 – ‘Airfield’).
The claimants submitted that the decisions in FAPL and Airfield meant that no reference was needed on the issue of communication to the public. Floyd J disagreed: the CJEU’s decision in Airfield did not make it easy to distil a clear principle as to what amounts to a communication to the public in the context of this case. A question will therefore be referred on this issue (set out below).
Floyd J held that reproduction by the creation of ‘rolling copies’ of films and broadcasts was rendered acte claire by FAPL, as was TVC’s s 28A defence, although its applicability will depend upon the result of the reference relating to communication to the public. A further reference on the construction of s 73 was refused: this was considered to be a question for the national court.
The question which it was proposed would be referred (at [24]) was as follows:
‘Does the right to authorise or prohibit a “communication to the public of their works by wire or wireless means” in Article 3.1 of the Directive extend to a case where:
(i) Authors authorise the inclusion of their works in a terrestrial free-to-air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;
(ii) A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party’s server and receive the content of the broadcast by means of an internet stream?
Does it make any difference to the answer to the above question if:
(a) The third party’s server allows only a “one?to?one” connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?
(b) The third party’s service is funded by advertising which is presented “pre?roll” (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or “in?skin” (i.e. within the frame of the viewing software which displays the received programme on the subscriber’s viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?
(c) the intervening organisation is:
(i) providing an alternative service to that of the original broadcaster, thereby acting in competition with the original broadcaster for viewers; or
(ii) acting in competition with the original broadcaster for advertising revenues?’
