UK: ECJ Clarifies Scope Of Communication To The Public Right

The facts

TV Catchup Limited ("TVC") operates a website which allows subscribed members to stream free-to-air programmes being broadcast live on UK television on computers, smart phones, games consoles etc. Only UK TV licence holders can subscribe. TVC operates without a licence and the broadcasters alleged that TVC had infringed their copyrights in films and broadcasts by reproducing them and communicating them to the public.

TVC generates revenue by showing its own advertisements before and during the showing of the programmes (via "in-skin" advertising), thus acting in direct competition with the broadcasters.

The question

The English High Court had already decided that some of what TVC was doing involved potentially infringing reproductions (see its judgments here and here) but Mr Justice Floyd referred two questions on the scope of the communication to the public right. He sought to clarify whether there is a communication to the public where a party (other than the original broadcaster) provides a service to subscribers, who could lawfully receive the original broadcast on their TVs, allowing the subscribers to receive the contents of that broadcast via an internet stream.

He also sought to determine whether the answer would be different if the third party's service only allowed one-to-one connections, if their service was funded by advertising or if they were in direct competition with the original broadcaster.

Whether or not there is a communication to the public will determine whether or not the temporary copies defence applies to the reproductions identified. As there is a communication to the public, the "lawful use" condition of the defence is not met so it does not apply.  The temporary reproductions of films in TVC's and its subscribers' buffers are therefore infringing unless another defence applies to them.

The decision

Was there a "communication"?

In the first of a number of significant findings, the Court held that each transmission or retransmission using a specific technical means must be individually authorised.  Here, TVC's retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from the original communication.  There was therefore a communication which, in principle, needed authorising.

It could not be said that what TVC did was merely a technical means to ensure or improve reception of the broadcast in its catchment area (which had previously been found not to be a communication), as TVC used a different transmission to the pre-existing transmission.

Distinguishing different types of communication could be important in future but may not always be straightforward, particularly as methods of media distribution converge and move online.  But, in essence, the Court has brought clarity to the situation: most cases where a third party uses a new means of transmission to deliver content will need the rights owners' consent.

Was the communication to the "public"?

The "public" is an indeterminate, large number of potential recipients.  Here, however, each communication was through a one-to-one connection i.e. from TVC to each individual subscriber.  The Court held that this was irrelevant and did not mean the communications were not to the public. What is relevant is whether a large, indeterminate number of people may access the same work at the same time. This conditionality is important: it does not mean that a large number have to be accessing a work at the same time, it is enough that the work is available for them to watch if they wish.

Was the communication to a "new" public?

Previous ECJ cases (such as FAPL v Murphy, see our note here) had tweaked the meaning of "public" slightly, apparently requiring the public to be a "new" public i.e. one that was not considered by the rights holders when they authorised the initial broadcast.  TVC said that this requirement was not met here, because its subscribers were entitled to watch the original broadcasts, as they were TV licence holders.

The ECJ distinguished the previous cases on the basis that they dealt with situations where the defendant had intervened only by making the original broadcast accessible (e.g. on a TV screen in a pub).  In those situations, it is important to ask whether there is a new public.  Here, TVC intervened using a different means of transmission to the original broadcast.  Where that is so, the ECJ held, there is no need to ask whether there is a new public.

Therefore, in future, only if the same method of communication is used as the original broadcast / communication will it be necessary to determine whether there is a "new" public. The "new public" test will still be important where, for example, an unlicensed streaming service intervenes to make other streamed content available at another online location. It is unfortunate, therefore, that the ECJ did not address the arguments on this point and further guidance from the ECJ will be needed.

Are other factors relevant?

The ECJ gave very short shrift to the suggestion that the facts that a service is profit-making or competes with authorised services would influence whether there is a communication to the public. The answer was a firm "no". This conflicts, however, with the suggestion in the FAPL case that it is "not irrelevant" that the communication is profit-making. It may therefore still be taken into account.

The new communication to the public test

As a result of this decision, we suggest that the following questions need to be asked when determining whether there is a communication to the public:

If the answers are "yes" to questions 1 and 3 and to either question 2 or 4 there will be a communication to the public.

The decision is an important clarification in the copyright protection available to broadcasters and their streaming and catch-up services but may make it more difficult for unlicensed services to compete with those services.

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