Background
In November 2011, Mr Justice Floyd handed down a further judgment in ITV Broadcasting & ors v TVCatchup Limited [2011] EWHC 2977 (Pat). He asked the CJEU to determine whether live Internet streaming of free-to-air TV channels is lawful. The CJEU has responded with a judgment published on 7 March 2013 (see Case number C-607/11). Although the CJEU judgment is merely a response to the questions raised by Floyd J (who will have to make a final determination in light of those responses), the CJEU’s views do not look like good news for the TVCatchup business model.
TVCatchup Ltd (‘TVC’) offers an Internet television broadcasting service. This service permits its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts. TVC ensures that its subscribers can obtain access only to content which they are already legally entitled to watch in the UK by virtue of their television licence. The terms to which users must agree include the possession of a valid TV licence and a restriction of use of TVC services to the UK. The TVC web site has the facility to authenticate the user’s location and thereby to refuse access where the conditions imposed on users are not satisfied.
Several British commercial television broadcasters have taken exception to the distribution by TVC over the Internet, substantially in real time, of their television broadcasts. The TVC service is funded by advertising, ie by showing an advertisement before the live stream is viewed. The advertisements actually contained in the original broadcasts are retained unaltered. There is also ‘In-skin advertising’. So the viewer sees the TVC live stream surrounded by advertising. It is because of the advertising that the claimants who broadcast commercial television channels in the UK regard TVC as direct competitors They brought proceedings against TVC for breach of their copyright in their broadcasts and films, alleging, inter alia, that there is a communication to the public which is prohibited both by national law and by Directive 2001/29.
The High Court (Floyd J) asked the CJEU whether there is a communication to the public, within the meaning of Directive 2001/29, in the case where an organisation such as TVC streams over the Internet broadcasts to members of the public who would have been entitled to access the original broadcast signal using their own television sets or laptops in their own homes.
CJEU Rulings
‘Communication’
The CJEU began by addressing the meaning of the concept of ‘communication’ and whetherTVC’s activity comes within the scope of that concept. Directive 2001/29 states that the right of communication to the public covers any transmission or retransmission of a work to the public not present at the place where the communication originates, by wire or wireless means, including broadcasting. In addition, authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications of those works to the public. The Court finds that, when a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must, as a rule, be individually authorised by its author.
Accordingly, given that the making of works available through the retransmission of a terrestrial television broadcast over the Internet uses a specific technical means different from that of the original communication, that retransmission must be considered to be a ‘communication’ within the meaning of Directive 2001/29. Such a retransmission cannot therefore be exempt from authorisation by the authors of the retransmitted works when these are communicated to the public.
‘Public’
The second issue addressed was whether the protected works have in fact been communicated to a ‘public’. According to CJEU case-law, the term ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. The Court points out that the cumulative effect of making the works available to potential recipients should be taken into account and that, in that connection, it is in particular relevant to ascertain the number of persons who have access to the same work at the same time and successively.
The Court finds that, in the present case, the retransmission of the works over the Internet is aimed at all persons resident in the UK who have an Internet connection and who claim to hold a television licence in that State. Those persons may access the protected works at the same time, in the context of the ‘live streaming‘ of television programmes over the Internet. That retransmission is aimed at an indeterminate number of potential recipients and implies a large number of persons. Consequently, the Court holds that, by the retransmission in question, the protected works are indeed communicated to a public within the meaning of Directive 2001/29.
Conclusion
Accordingly, the Court answers that the concept of ‘communication to the public’, within the meaning of Directive 2001/29, must be interpreted as covering a retransmission of the works included in a terrestrial television broadcast, where the retransmission is made by an organisation other than the original broadcaster, by means of an Internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.
