What? A recent court judgment provides further guidance on copyright infringement in relation to the rebroadcasting of free-to-air television but refers the question of what constitutes “communication to the public” to the Court of Justice of the European Union (“CJEU”).
So what? The High Court has provided some preliminary findings in relation to circumstances in which the rebroadcasting of free-to-air television and films may infringe the original broadcasters’ copyright in those broadcasts. The High Court has sought clarity from the CJEU in relation to whether the rebroadcasting constitutes “communication to the public”. The High Court has indicated, however, that if the rebroadcasting of the transmissions constitutes “communication to the public”, that this is likely to infringe the broadcasters’ copyright. This in turn may give rise to a series of copyright infringement claims by broadcasters.
The UK High Court has considered whether a website (www.tvcatchup.com) which enables members of the public to watch live UK free-to-air television and films on computers, smartphones and games consoles infringes the copyright of broadcasters. To receive the service, users had to first sign up as members of the website. They could then select a stream of the programme being broadcast after a slight delay, because Television Catch Up (“TVC”) first showed the member an advertisement. None of this video stream was stored on any permanent storage medium. However, each step of the process resulted in the storage of a small amount of data from the video stream on a server. In some cases up to 30-40 seconds of video would be stored.
This latest judgment follows the initial judgment handed down by the same court on 18 July 2011. The most recent judgment considers whether certain questions should still be referred to the Court of Justice of the European Union (“CJEU”) and, if so, on what terms.
The claimants argued that:
- Copyright in the broadcasts and films was infringed by the
communication of them to the public; and
- Copyright in the broadcasts and films was infringed by the making of transient copies of the broadcasts and films in TVC's servers and on the screens of users.
Under UK copyright laws, communicating to the public is an act restricted by copyright in certain circumstances. Copyright material is communicated to the public unlawfully if a broadcast or film is made available to the public via an "electronic transmission" in a broadcast that is accessible by the public "from a place and at a time individually chosen by them". As a result, the High Court has asked the CJEU to rule on whether TVC's streaming service constitutes a "communication to the public".
The High Court ruled that:
- although TVC’s servers do reproduce substantial parts
of films, it had not been proved that the site holds substantially
large fragments of those films on its servers at any one
time;
- TVC is not copying broadcasts. The judge added that he
“cannot see any basis on which it can sensibly be argued
that there is a reproduction of a substantial part of a broadcast
except on the rolling basis.” He saw no reason to refer
the matter to the CJEU; and
- TVC could defend itself under copyright laws which allow broadcasts to be retransmitted.
The parties are now waiting for the CJEU to rule on whether TVC’s activities amount to “communication to the public”. The High Court has asked the CJEU a series of questions to clarify the extent to which, on the current facts, a communication to the public applies and whether certain factors would alter the CJEU’s finding.
Once the CJEU has handed down its judgment, the High Court will be in a position to provide its judgment in this case. The judge has preliminarily indicated, however, that if TVC’s streams are “communications to the public” that TVC will infringe the broadcasters’ copyright.
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.