UK: ITV & Others v TVCatchup – Advocate General's Opinion Makes Light Work Of Court Of Appeal's Uncertainty As To The Meaning Of ‘Access To Cable Of Broadcasting Services'

In the previous instalment of this dispute, the UK Court of Appeal (CA) referred questions to the Court of Justice of the European Union (CJEU) on the meaning of the expression 'access to cable of broadcasting services' used in Article 9 of Directive 2001/29/EC (the InfoSoc Directive). The CA stated that Article 9, which it described as a "saving provision", permitted Member States to maintain pre-existing provisions in their national copyright legislation notwithstanding the harmonisation objective pursued by the InfoSoc Directive (and the exhaustive list of exceptions set out in Article 5). The questions referred by the CA are now the subject of an Opinion from the Advocate General (AG), who makes it clear that, in his view, the exception for cable retransmissions set out in section 73 of the Copyright, Designs and Patents Act is entirely unrelated to the Article 9 'saving provision'. We expect the CJEU to agree, consigning the exception to history, defeating TVCatchup's final defence and removing an obstacle to public service broadcasters claiming retransmission fees from other operators.


In the proceedings brought against TVCatchup (TVC) by ITV, Channel 4 and Five, the High Court decided that while TVC had infringed the broadcasters' copyright by streaming the non-public service broadcast (non-PSB) channels, TVC could continue streaming the PSB channels as it was able to rely on a defence under section 73. The section provides a copyright exception in relation to the retransmission of PSB channels by 'cable'. The High Court regarded the exception as broad enough to cover retransmission over the internet, although not retransmission to mobile devices. After hearing the appeals made by both sides against that decision, including interventions from the UK government and from Virgin Media, the CA referred to the CJEU the question of whether section 73 could be retained as an exception on the basis that it falls within the scope of Article 9.

Article 9 provides that the InfoSoc Directive "shall be without prejudice to provisions concerning in particular...access to cable of broadcasting services".

The opinion

The AG concluded that the reference to the CJEU was misguided. Article 9 of the InfoSoc Directive does not permit outright exclusions from harmonisation since such exclusions would cut across the rights established by Articles 2 to 4 of the InfoSoc Directive (on reproduction, communication and distribution rights). Article 9 is only concerned with maintaining provisions which are relevant to areas other than those harmonised by the InfoSoc Directive such as data protection and privacy, trademarks, confidentiality and patent rights. It follows that section 73, which provides for an exception to one of the core exclusive rights, the right of communication to the public (Article 3), cannot fall within Article 9. A contrary interpretation would frustrate the harmonisation objective pursued by this piece of European legislation.

The AG said that it is not possible to see how 'access to cable' could possibly translate to mean 'retransmitting by cable'. The InfoSoc Directive already contains a provision dealing specifically with 'cable retransmission': Article 2(e). If Article 9 had intended to refer to cable retransmission, it would have done so. The words 'access to cable', the AG suggested, very likely refer to access between providers to cable networks within the context of the entirely separate pro-competition regimes established in the Access Directive (2002/19/EC) and Framework Directive (2002/21/EC) and are not to be construed as providing a defence against copyright infringement. Moreover, for completeness, the AG also observed that 'cable' is required to be given an autonomous meaning in EU law which, in the absence of an express definition in the InfoSoc Directive, must be interpreted by taking account of its context, of other documents in which it is used, and of the objectives pursued by those. He concluded that if the EU legislature had intended to adopt a broader, technologically neutral meaning (to include the internet), it would have chosen a more general concept, for example 'wire', or the legislation would at least have made clear that the concept of 'cable' included other technologies such as the internet. In the absence of that broader language being used or a qualified meaning given, 'cable' must refer to a traditional cable network operated by a conventional service provider.

In conclusion

While the CJEU is not bound to follow the AG's opinion, his matter of fact, no nonsense dismissal of any suggestion that Article 9 allows for core copyright protections to be undermined through the back door indicates that the CA, and indeed the government, had run up a blind alley. We do not therefore expect the CJEU to be minded to disagree.

In the meantime, the fate of section 73 looks sealed: it is set to be abolished by the new Digital Economy Bill now before Parliament (see clause 28 of the Bill). We will see in time whether or not this paves the way for the payment of retransmission fees by cable operators to the public service broadcasters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions