Case C-607/11: ITV, Channel 4 and Channel 5 vs TVCatchup Limited (for a link to the judgment click here).
On 7 March 2013, the European Court of Justice issued its long-awaited judgment in the case brought by ITV, Channel 4 and Channel 5 (the "Claimants") (represented by Olswang), against TVCatchup Limited ("TVCatchup"). The case will now return to the High Court for application of the European judgment to the case facts, including in the light of any limited defences available in the UK. At a European level, the judgment is resoundingly in the Claimants' favour.
Where there are copyright works included in a terrestrial TV broadcast, and those works are (i) retransmitted by an organisation other than the original broadcaster, without its consent; and (ii) via a different technical means (in this case, via the internet rather than as a terrestrial broadcast), then the retransmission would amount to an unauthorised "communication to the public" of those works. This remains the case even where (i) the subscribers to the service could otherwise lawfully have received the broadcast on their television receivers; and (ii) whether or not the service is profit-making or competes with the original broadcaster.
Whilst the application of this decision to the TVCatchup service is subject to the forthcoming High Court ruling, the decision has wider implications than in respect of these facts. The European Court has given clear guidance on the wide-ranging scope of the "communication to the public" right. Rights-owners and broadcasters, as well as those providing services or hardware enabling re-transmission of third party content, will be considering this decision and whether those services involve an unlawful communication to the public.
TVCatchup operates a service which permits subscribers in the UK to receive, via the internet, live streams of free-to-air television broadcasts, including those originally transmitted by the Claimants. The Claimants jointly brought proceedings at the High Court for infringement of copyright in their broadcasts and in the underlying films (i.e. the programmes). One of the allegations was that there was a "communication to the public" within s.20 CDPA, and Article 3(1) of Directive 2001/29.
In July and November 2011, Mr Justice Floyd issued a split judgment, in which he gave provisional judgment on a number of issues, including that TVCatchup was communicating the Claimants' works to the public. However, on this point the High Court sought clarification by referring a question to the ECJ.
Having unusually dispensed with the need for an Advocate-General's opinion, the ECJ's judgment includes the following points:
1. 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;
2. each transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question (in this case, the retransmission via the internet as opposed to the original broadcast);
3. a mere technical means to ensure or improve reception of the original transmission in its catchment area does not constitute a "communication", but this exception only relates to the pre-existing transmission and cannot be used for any other transmission - in this case TVCatchup's service cannot be considered to be a "mere technical means";
4. TVCatchup's communication is "to the public": it is irrelevant that TVCatchup communicates works through a series of "one-to-one" connections;
5. since there are two transmissions by different technical means, both of which require rights-owners' consent, there is no need to prove the second communication is to a "new public";
6. Consequently, the communication to the public right covers "a retransmission of the works included in a terrestrial television broadcast:
a. where the retransmission is made by an organisation other than the original broadcaster;
b. 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;
c. 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".
7. It is irrelevant whether the service is (i) funded by advertising and is therefore of a profit-making nature; or (ii) in direct competition with the original broadcaster, so the service can still amount to an unauthorised communication irrespective of these factors.