ITV Broadcasting Limited and others v TV Catchup Limited [2010] EWHC 3063C(h)
TV Catch Up Ltd, operated a website at www.tvcatchup.com which allowed members of the public to watch live UK television, including the channels of ITV and others, on their computers, iPhones and games consoles. Any member of the public wishing to access the service first had to become a member. They could then select one of over 50 channels by pressing on the appropriate icon, whereupon they were taken to a new screen on which TV Catch Up provided a stream of the programme being broadcast on that channel. There was a slight delay before the member saw the programme because TV Catch Up first showed one of its own advertisements. ITV et al alleged that TV Catch Up had infringed the copyrights in their broadcasts by communicating those broadcasts to the public by electronic transmission.
Section 6 of the Copyright Designs and Patents Act 1988 Act defines a broadcast. It provides that:
"6-(1) In this Part a "broadcast" means an electronic transmission of visual images, sounds or other information which— (a) is transmitted for simultaneous reception by members of the public and capable of being lawfully received by them, or (b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public, and which is not excepted by subsection (1A); and references to broadcasting shall be construed accordingly."
Under section 16 of the CDPA, the owner of the copyright in a broadcast has the exclusive right to:
(a) to copy the broadcast (see section 17); (b) to issue copies of the broadcast to the public (see section 18); (c) to communicate the broadcast to the public (see section 20).
Section 20(2) provides that :
"references to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—
(a) the broadcasting of the work; (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them."
TV Catch Up applied for summary judgment, arguing that, in order to infringe copyright under section 20, its transmission had itself to be a broadcast within section 6 of the CDPA, which it was not.
ITV accepted that TV Catch Up's transmissions were not broadcasts within the meaning of section 6 of the CDPA, and that TV Catch Up had not made the broadcasts available to the public in such a way that members of the public could access them at a time and place individually chosen by them as per section 20(2)(b). However, ITV argued that TV Catch Up's service nevertheless involved communicating ITV's broadcasts to the public by electronic transmission so as to fall within the scope of section 20 of the CDPA.
Kitchin J rejected TV Catch Up's summary judgment application. He held that the definition of communicating a copyright work to the public under section 20(2) of the CDPA covered all acts which constituted communicating the work to the public by electronic transmission, and was not confined to the two means of communication specified in section 20(2)(a) and (b). TV Catch Up's argument confused the protected work (the transmission of images etc) with the restricted act (the act of transmission).
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