High Court asks ECJ if streaming service breaks copyright laws

The UK High Court is to ask the European Court of Justice (ECJ) if streaming live TV programmes over the internet is an act subject to copyright laws after provisionally ruling that it is.



Mr Justice Floyd said that TVCatchup did communicate to the public when it streamed programmes broadcast by ITV, Channel 4 and Channel Five to internet users. The judge said he would ask the ECJ to consider whether he is right.

TVCatchup.com relays free-to-air TV channels to computers and smartphones. Broadcasters ITV, Channel 4 and Five claim that it uses material they have the rights to without permission.

UK copyright laws state that communicating to the public is an act restricted by copyright in certain circumstances.

The Copyright, Design and Patents Act states that copyrighted 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".

That section of the Act was introduced by The Copyright and Related Rights Regulations in 2003 to implement the EU's Information Society Directive.

The Directive states that broadcasters' copyright rights apply broadly to all communications to the public not made by the rights-holding broadcaster. This right "should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting", the Directive states.

Mr Justice Floyd said it was his "provisional opinion" that TVCatchup's streaming service constituted a communication to the public.

"In my provisional view, the acts of TVCatchup in intercepting the [broadcasters'] broadcasts (and works comprised therein) and making them available via the internet amount to acts of communication to the public," the judge said in his ruling.

"TVCatchup’s intervention is plainly by an organisation other than the original broadcaster. It is, [on the face of it], a 'communication to the public'. It is necessary to see whether it can be brought within the limitations on that term," the judge said.

The judge said that it would ask the ECJ to consider whether TVCatchup's streaming service was indeed a communication to the public. He said the ECJ had to consider whether the service attracted a 'new public' who would not otherwise watch the programmes directly through the broadcasters and whether that was significant in determining whether its streaming of programmes constituted unlawful activity.

"I consider that the principles which it is possible to extract from [previous case law] do not go far enough to enable me to answer that question conclusively in the [broadcasters'] favour," Mr Justice Floyd said in his ruling.

"I propose therefore to refer a question for the opinion of the Court of Justice on this point," the judge said.

TVCatchup said that it only provided the "technical means" to the public to access copyrighted content and had therefore not communicated the material to the public, but Mr Justice Floyd said he disagreed.

"TVCatchup do not in my judgment merely provide technical means to ensure or improve reception in the catchment area of the broadcast," the judge said.

"The service ... is an alternative service to that of the original broadcaster, including its own advertising content, and which is in competition with the service provided by the original broadcaster. It is operated for profit. It is intended to attract its own public audience," the judge said.

"Its activities are therefore, in my view an independent exploitation, of the works and other subject matter. They are not merely supportive of the original exploitation of the work," the judge said.

Mr Justice Floyd rejected TVCatchup's view that its streaming service was just a number of private communications between the service it offered and its audience. The company had argued these private communications, even when considered as a whole, did not constitute a 'communication to the public'.

TVCatchup also claimed it was not responsible for controlling the equipment the audience uses to access the signal to the content it streams, but Mr Justice Floyd said that it was not relevant as any offence would be in distributing the signal itself which TVCatchup did, he said.

TVCatchup also relays films on its streaming service. The broadcasters claim that the company violates copyrights by communicating the films to the public but the firm argued that it only made temporary copies of the films which was a lawful use of the material.

Under UK copyright laws temporary copies are not unlawful if they are "transient or incidental" to the whole works and are made in order to ensure the programme is technically broadcast with "no independent significance".

TVCatchup stores some video when it streams content to viewers. This amounts to approximately 30 to 40 seconds worth of material when the material is streamed via Apple devices, Mr Justice Floyd said in his ruling.

The judge said he believed TVCatchup did "reproduce and authorise the reproduction of a substantial part of the films" when the video is transmitted through its signal to users.

The ECJ is set to provide guidance on how national courts should determine what constitutes a substantial use of video. Mr Justice Floyd said he would wait for the ECJ to pass its ruling before confirming his provisional view.

The judge did provisionally rule that TVCatchup did not authorise the reproduction of substantial parts of the copyrighted programmes when it stored data that 'buffers' before playing on a user's screen.

Buffering occurs when data being loaded is processed at a different rate at which it is being received, causing a slight delay in the material being loaded.

"I think it is reasonably clear that the reproductions in the buffers have no independent economic significance, but it is not impossible that the ECJ will come to a different view," Mr Justice Floyd said.

"It is less clear whether reproduction on the screens of the users has independent economic significance. The correct answer should be made clear by the outcome [that the ECJ comes to]. I will accordingly defer final judgment on this point," the judge said.

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TVCatchup vows court fight with broadcasters



The TV re-broadcasting service at the heart of a copyright fight with three of the UK's biggest broadcasters has insisted it has not broken any laws and has pledged to fight its corner in court.



TVCatchup.com relays free-to-air TV channels to computers and smartphones. Broadcasters ITV, Channel 4 and Five have launched a copyright infringement suit against the company, claiming that it uses material they have the rights to without permission.

TVCatchup.com has told OUT-LAW.COM that it believes it has not broken copyright law and that it will defend its business in court.

"TVCatchup’s position is that we are neither broadcasting, copying nor communicating a broadcast contrary to any relevant UK or European law," said a spokesman. "TVCatchup is supported in its actions by a highly proficient legal team, and if unable to resolve any uncertainty in the civilised manner originally intended, is prepared and ready to vigorously defend itself from the predatory commercially motivated actions of a handful of broadcasters."

An ITV spokeswoman said that it decided to take action in March this year after it received no reply from a cease and desist letter it sent to TVCatchup.com.

"ITV, Channel 4 and Five can confirm that they issued joint legal proceedings against TVCatchup, a web-based TV streaming service on 29th March 2010," she said. "TVCatchup do not have a content distribution agreement in place to stream content from any of our channels. We reserve the right to pursue any site or service we believe to be infringing our copyright or using our content in an unlicensed, illegal capacity."

TVCatchup.com said that its service was simply a way for people in poor reception areas or those without multiple televisions to watch content that they are entitled to watch in broadcast form.

Intellectual property expert Kim Walker of Pinsent Masons, the law firm behind OUT-LAW.COM, said, though, that a court would be likely to find that the service did infringe the copyrights not only of the broadcasters but also of the makers of the programmes carried by the channels.

"Streaming of a broadcast is generally illegal, an infringement of copyright in the broadcast and in the underlying programme," said Walker. "But there are some possible exceptions which apply only to broadcasts. They are very narrow and as far as I'm aware are not really intended for what TVCatchup are doing."

Section 72 of the Copyright Designs and Patents Act (CDPA) creates an exception for the public showing of television, such as the showing of sports on a big screen in the outdoors, said Walker.

Section 73 allows for the re-broadcast of television to homes, but only in some circumstances.

"Section 73 was intended to allow cable operators to retransmit free to air broadcasts in areas where the broadcast was intended to be received but it couldn't be received very well because of hills and dales," said Walker. "An awful lot of conditions are attached to that exception."

TVCatchup.com denied, though, that Section 73 is the basis of its opinion that its services do not infringe broadcasters' and programme makers' copyright.

"Although we cannot comment further on the issues in the case, we would point out that the case has little to do with [Section] 73 [of the] CDPA as has been reported, and an injunction was never applied for," the spokesman said.

When it received ITV's cease and desist letter, TVCatchup.com applied to the High Court for a determination that its services were legal.

The broadcasters then lodged their claim against the company. TVCatchup.com said that both legal processes were likely to run in parallel. It said that it would operate its service as normal but would shelve plans to extend access to other EU countries.

It will also suspend plans to allow the recording of material and to introduce subscription services, it said.