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NOVEMBER 2011

UK copyright law has been increasingly criticised for its apparent inability to accommodate digital and technology advances. This has led to legislation such as the Digital Economy Act 2010 being pushed through parliament in great haste in an effort to plug the gaps. Meanwhile our judges try to grapple with the impact of European copyright legislation. 

 Mr Justice Floyd in his latest judgment in ITV Broadcasting & Others (“ITV”) v TV Catchup Limited (“TVC”) [2011] EWHC 1874 (Pat) has referred questions to the Court of Justice of the European Union (CJEU, formerly the ECJ) for further clarification on issues connected with online streaming. This initial judgment was handed down in July 2011 and further judgment was given on 14 November 2011. The position is still far from being resolved.

Facts

The case centred around a website run by TVC enabling viewers to watch live UK television on their computers, smartphones and games consoles. 

ITV and various other broadcasters alleged that there had been copyright infringement by virtue of the fact that there had been (a) communication of their works to the public and (b) the making, or the authorisation of the making of, transient copies of the works in TVC’s servers and on the users’ screens. 

TVC raised a defence under section 28A of the CDPA that it was making temporary incidental copies as an integral part of a technological process to allow it to transmit the work between third parties. It argued that, in doing so, the transmission had no independent economic significance to TVC, and was therefore not a prohibited reproduction.

TVC also argued that it was streaming regional channels only in the area for which those channels were made for reception and that it should therefore enjoy the benefit of the cable retransmission defence in s73 CDPA.

July Judgment

Floyd J’s initial view was that:

1. TVC was communicating films and broadcasts to the public, but this view should be referred to the CJEU for a ruling. 
2. TVC was not reproducing a substantial part of the broadcasts in its buffers or on users’ screens, but this would ultimately depend on the outcome of Football Association Premier League v QC Leisure [2008] EWHC 1411 (Ch) and Joined Cases C-431/09 and C-432/09 (“FAPL/Murphy cases”). 
3.  TVC was reproducing a substantial part of the films in its buffers and on users’ screens, but this again would depend on the outcome of the FAPL/Murphy cases.
4. The section 28A CDPA defence applied to the reproductions in the buffers but not on the screens, subject to any relevant findings on this issue by CJEU in the FAPL/Murphy cases.
5. TVC did have a defence under section 73 CDPA as far as regional services were concerned, except to the extent that these were to mobile phones or to areas outside the relevant region, as they were “made for reception” in the area to which it was streaming them.

November Judgment

Floyd J has now considered the rulings in FAPL. Whereas he had earlier concluded that there was reproduction of a substantial part of the films on the screens, the CJEU took a contrary view on similar facts in FAPL. 

The judge also confirmed his decision that a referral to the CJEU should be made, on the interpretation of “communication to the public” of works within the InfoSoc Directive 2001/29/EC, notwithstanding submissions by ITV that TVC’s retransmissions amounted to such on the basis of the European Court’s recent decision in the analogous Airfield case (Airfield NV and Canaal Digital NV v Belgische Vereniging van Auteurs, Compositien en Uitgevers CVBA and Airfield NV v Agicoa Belgium BVBA (Joined Cases C-431/09 and C-432/09)). 

Whether TVC’s defence that it was making temporary incidental copies to allow it to transmit the work between third parties will succeed therefore depends on whether the use of the copies was lawful, and this depends on the interpretation of “communication to the public”.

The indication from the High Court was that “communication to the public” should be construed widely, although as we have seen with FAPL, the CJEU may well take a different approach. 

And now?

Until the CJEU gives its ruling, nothing will change. However, its eventual decision will have a profound effect upon the copyright principles governing access to online content by consumers. 

In particular, Floyd J has asked the CJEU to determine whether it makes a difference if the website providing the content is in competition with the original broadcaster for advertising revenue or for viewers. If the CJEU does distinguish these situations then this could significantly affect the way websites offer consumers access to content.

Louisa Greene
Trainee Solicitor

If you would like any further information about the issues raised in this article plese contact Paul Herbert (pherbert@gdlaw.co.uk), or any other member of Goodman Derrick LLP's media team on 0207 404 0606. 

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.