Readers may recall that there was a reference by the Court of Appeal to the CJEU in the litigation involving ITV and TVCatchup, an internet broadcaster of live shows. TVCatchup is now in administration but the copyright dispute lumbers on under its own steam; the business is now run by TV Catchup (UK) Ltd (no relation) under a licence granted by Media Resources Limited and those two companies were given leave to intervene.
The remaining issues at stake turn on the meaning of ‘retransmitted by cable’ and whether TVCatchup may be able to rely on a defence under the Copyright, Designs and Patents Act 1988, s 79 insofar as streaming is over the Internet to subscribers in the area of the original transmission. Most relevantly in practice was whether that defence might stretch beyond retransmission via domestic wifi and embrace retransmission to mobile phones.
In ITV Broadcasting Ltd & Ors v TVCatchup Ltd & Ors [2015] EWCA Civ 204 (26 March 2015) the Court of Appeal referred the following questions to the CJEU:
On the interpretation of Article 9 of [Directive 2001/29], specifically of the phrase “this Directive shall be without prejudice in particular to … access to cable of broadcasting services”:
1. Does the quoted phrase permit the continued application of a provision of national law with the scope of “cable” as defined by national law, or is the scope of this part of Article 9 determined by a meaning of “cable” that is defined by EU law?
2. If “cable” in Article 9 is defined by EU law, what is that meaning? In particular:
(a) Does it have a technologically specific meaning, restricted to traditional cable networks operated by conventional cable service providers?
(b) Alternatively, does it have a technologically neutral meaning which includes functionally similar services transmitted via the internet?
(c) In either case, does it include transmission of microwave energy between fixed terrestrial points?
3. Does the quoted phrase apply (1) to provisions which require cable networks to retransmit certain broadcasts or (2) to provisions which permit the retransmission by cable of broadcasts (a) where the retransmissions are simultaneous and limited to areas in which the broadcasts were made for reception and/or (b) where the retransmissions are of broadcasts on channels which are subject to certain public service obligations?
4. If the scope of “cable” within Article 9 is defined by national law, is the provision of national law subject to the EU principles of proportionality and fair balance between the rights of copyright owners, cable owners and the public interest?
5. Is Article 9 limited to the provisions of national law in force at the date on which the Directive was agreed, the date it entered into force or its last date for implementation, or does it also apply to subsequent provisions of national law which concern access to cable of broadcasting services?’
On 8 September, Advocate General Henrik Saugmandsgaard Øe published his Opinion on the questions referred by the Court of Appeal (Case-275/15).
The Opinion
The Advocate General begins by limiting his analysis. He takes the view that the third question referred should be reframed (their lordships in the Court of Appeal will no doubt appreciate his advice) and that, in its reframed form, should be the first to be considered by the CJEU. Since his recommended answer to that third question is in the negative, the other questions fall away, although he offers certain further observations.
Basically, Advocate General Saugmandsgaard Øe considers that the whole focus of the reference to the CJEU is misplaced. He states (at [37]-[39]):
As stated in its heading and in its wording, Article 9 of Directive 2001/29 concerns the ‘continued application of other provisions’ and provides that that directive is to be ‘without prejudice to’ provisions in certain areas. Recital 60 of the directive explains that the provisions referred to in Article 9 are those connected with ‘other areas’ and which ‘may affect the protection of copyright or related rights’.
Article 9 of Directive 2001/29 thus does not in the slightest permit exceptions to the rights established by Articles 2 to 4 of the directive. The exceptions are, moreover, the subject of exhaustive harmonisation under Article 5 of the directive. The objective pursued by Article 9 is, on the contrary, to maintain the effect of the provisions applicable in certain areas other than the area harmonised by the directive. That reading is confirmed by the list of areas in Article 9, which refers, inter alia, to trade marks, design rights, protection of national treasures, laws on restrictive practices and unfair competition, data protection and privacy, and the law of contract.
That in itself means that legislation, such as section 73(2)(b) and (3) of the CDPA, which provides for an exception to the exclusive right of communication enshrined in Article 3 of Directive 2001/29 cannot fall within Article 9 of that directive.
Nonetheless, he goes on to consider other issues. The meaning of ‘cable’ is, he believes to be determined in accordance with EU law and in a uniform way. It was not intended as a technologically neutral term. On that basis, the concept of ‘cable’ within the meaning of Article 9 is restricted to traditional cable networks and thus does not extend to internet transmissions or mobile transmissions.
He concludes (at [75]):
In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Court of Appeal (England and Wales) (Civil Division), United Kingdom, as follows:
Article 9 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that legislation which permits the retransmission by cable of broadcasts, without the consent of the copyright holders, where the retransmissions are simultaneous and limited to areas in which the broadcasts were made for reception, irrespective of whether or not the retransmissions are of broadcasts on channels which are subject to certain public service obligations, does not fall within the scope of that provision.
The full Opinion can be accessed here.
