ITV said that TV Catchup ('TVC') had infringed the copyright in its broadcasts by communicating those broadcasts to the public through a process of electronic transmission. This consisted of TVC running a website which allowed ordinary viewers to watch live United Kingdom television -- including broadcasts by ITV -- on their very own computers, smart phones and games consoles. To do this, the viewer had to become a member of TVC, which gave him the option to choose one of 50 or so channels. The viewer, having made his or her choice, would be taken to a new screen on which TVC provided a stream of the programme being broadcast.
|"For goodness' sake, Henry,|
I said 'pause', not 'paws'"
Today Mr Justice Floyd delivered a 39-page, 145 paragraph judgment which reflected the judge's thoroughness in dealing with the parties' respective arguments concerning an area of law which has become almost unbearably complex and taken on an almost metaphysical dimension, divorced from the mundane nature of the activities it governs. He had to consider the validity of the amended version of section 20 itself, as well as a variety of issues relating to TVC's defences, one of which was reliance on the CDPA, s.28A which states:
"Copyright in a ... film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable -
(a) a transmission of the work in a network between third parties by an intermediary; or
(b) a lawful use of the work;
and which has no independent economic significance".
|This was most definitely not|
the sort of transmission that
Fluffikins was thinking of ...
- the CDPA s.20(c) was not ultra vires the InfoSoc Directive;
- TVC was indeed communicating films and broadcasts to the public, but, just to be on the safe side, it's a good idea to refer this issue to the Court of Justice of the European Union for a preliminary ruling, so hold your breath! ;
- subject to anything the Court of Justice might say to the contrary in its keenly-awaited ruling in Football Association Premier League v QC Leisure [Advocate General's Opinion this February noted briefly here, with links], TVC had reproduced a substantial part of the films in its buffers (which could in theory hold up to 8 seconds worth of video streaming) and on screen;
- provisionally, the reproduction in the buffers and on the screens was not a reproduction of a substantial part of a broadcast ... but this is also to be referred to the Court of Justice of the European Union for a preliminary ruling. Keep holding that breath!
- final judgment on the application of the CDPA, s.28A to reproduction of the films and broadcasts in the buffers and on the screens should await the outcome of the Football Association Premier League case -- but the judge's provisional view is that the defence does apply to the reproductions in the buffers;
- the CDPA section 73 defence ['Reception and re-transmission of wireless broadcast by cable': the Kat isn't even going to try to explain this one here] applies to the qualifying services ...
- ... but not in respect of re-transmission to mobile phones or of out of area services. [Throwing caution to the wind, Merpel says "the finding that, for s.73 purposes, "internet streaming" is "cable" is no great shock, since it reflects obiter observations in two earlier decisions, even though the scope of the s.73 defence now looks rather limited. However, it will be fun to see how the distinction Floyd J makes between mobile phone access and land line access will work in practice"].
Without the aid of an abacus on which to count them, the IPKat finds it increasingly difficult to keep track of the increasing number of cases in which the meaning of the words "communication to the public" has been referred to Europe's highest court for an authoritative ruling. Is it six now? Merpel quips, soon we'll have as many rulings on "communication to the public" as we have on "use of a sign" in trade mark law.