TuneIn to the sound of communication to the public (Part 1)

As Eleonora informed us in this Katpost here – the UK Courts have weighed in on communication to the public, in what the court called “a test case” about infringement of copyright in sound recordings accessed via an online platform that connects users to radio stations around the world.

The case brings to light some of this Kats favourite copyright issues around applying copyright infringement to new technologies online. The stakes were high - the claimants argued that finding for the defendant would fatally undermine copyright and the defendant said that a finding for the claimants would break the internet. The UK Court took the opportunity to take a view on the application of communication to the public, providing some distinctions which could create clarity or further complexity in this already controversial area of copyright.

Parties

The claimants - Warner Music and Song Music - own or hold the exclusive licences to copyright in sound recordings of music, together accounting for more than half the market for digital sales of recorded music in the UK and about 43% globally.

The defendant – TuneIn - is a US technology company, that operates an online platform which enables their 75 million monthly active users to access over 100,000 radio stations around the world. TuneIn Radio is available via a website and app, its free for registered and unregistered users, and includes a paid for advert-free version. TuneIn has partnership deals that mean it is pre-installed on a number of devices such as Bose, Sonos and Sony PlayStation [yes, Sony] as well as connected TV and connected cars. [Also, anyone reading the judgement, don’t be thrown by the start of para 5 where it says “the claimant (TuneIn)” - they are the defendants – it's not just my IPKat posts that host typos!] 

Radio Ga Ga

Radio go ogoo
Image: Jean-Sebastien Ouellet

A traditional radio station broadcasts using radio waves - such as frequency modulation (FM) – and requires a licence from the copyright holders to do so, usually organised through Phonographic Performance Limited (PPL). Nowadays, we also have internet radio – either a ‘simulcaster’ which is a traditional radio station that also simultaneously transmits via the internet, or a ‘webcasts’ which simply transmits its signal over the internet and does not broadcast by radio waves. Internet radio stations also require a copyright licence for playing the music recordings.

To facilitate searching, browsing and playback of audio content, TuneIn collects and stores metadata about content being transmitted by radio stations (e.g. the artist, track and album names) from data provided by the stations. TuneIn does not, however, collect, transmit or store any third-party audio content; it connects the users to – and therefore relies upon – third party radio stations' streams.

The claimants' case is that TuneIn requires a licence from them, but the TuneIn strongly dispute this on the basis that they do not transmit or store any music, and merely provide its users with hyperlinks to works which have already been made freely available on the internet without any geographic or other restriction.

The UK courts assessment of communication to the public

Mr Justice Birss considered the meaning of Svensson, where the CJEU identified that the concept of communication to the public includes two cumulative criteria; 1) an "act of communication" and 2) the communication of that work to a "public". In addressing the first criteria the CJEU stated that the "act of communication" is to be construed broadly and making a hyperlink available, even if the user does not click on it, is itself an act of communication.

In addressing the second criteria, the CJEU stated that term "public" means an indeterminate and fairly large number of potential recipients. But, since the communication in question concerned the same works which had already been the subject of another communication, the CJEU found that one of two alternative further criteria has to be satisfied for the act to amount to a communication to the public, and so we get 2a) there was a new technical means employed or 2b) the communication was to a new public. Considering 2a, the CJEU found in Svensson that since both communications were via the internet, no new technical means was employed and therefore treated "the internet" as a single technical means. Considering 2b, the CJEU found that there was no new public since the public targeted by the initial communication was all internet users, as it was freely available online without any restrictive measures.

Applying this reasoning to the present case, Mr Justice Birss pointed out that the CJEU reason that availability is an all or nothing idea, when in fact, he stated “the world is not really like that”.

Arranged by author, title and cat.
Image: Steve Rainwater

However, using the analogy of a book in a large library that is available in one sense but might never be read if it is not correctly indexed, Birss makes the point that correctly indexing such a book is a way of making it available to anyone who did not have the time or inclination to walk down every shelf looking at every book in turn. That is why – he said - it can make sense to regard linking as an act of making something available. [In my book, I argue that offline metaphorical justifications for applying copyright to online activity are inaccurate and can lead to inappropriate decisions. And so, I would respectfully disagree that the example of finding a book in a library “makes sense” for finding that linking online is copyright infringement by making available, because finding a book in a library is not the same as finding material online via a link. Finding a book in a library would require a person to physically walk around but they would already be within the four walls of a building providing books. Finding anything on the internet – that contains infinite information of all varieties - would arguably be impossible without search through indexing.]

Birss goes on to say that from the Svensson judgement it appears that “once a copyright owner has given permission for a work to be put on a website which is not subject to technical access restrictions, they must be taken to have targeted, and therefore taken into account, the entire world as the relevant ‘public’.” These was the facts of the Svensson case that differed in GS Media, where the first posting was without the copyright holder’s consent.

GS Media then introduced new factors of consideration - whether the links were provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website. Birss commented on this being “odd” as it introduced the concept of the state of mind of the accessory to an act of primary liability, which might previously have been thought to be a tort of strict liability. [One might presume to interpret the tone of this declaration (at para 66) as jolly good British eyebrow raise!]

Did you just raise your eyebrow at me?
Image: Bob Hall

Birss then considers Renckhoff and states that the CJEU is taking a holistic approach to communication to the public whereby the nature of the act of communication to be taken into account; while individual elements need to be considered (‘communication’, ‘public’, ‘new public’) it is also necessary to look at the circumstances as a whole. In light of this, (and further to the 18 points on the state of communication to the public set out by Arnold J in Paramount v BSkyB at 12) Mr Justice Birss thus sewed summised the following 8 factors from the rich tapestry of the communication to the public case law:

1. Assessment of communication to the public is an individualised and case specific assessment which must be carried out as a whole.
2. Providing a link to a work is capable of being an act of communication to the public, even if no one actually selects the link.
3. If the initial posting of the work was done with consent then it is itself an act of communication to the public and any subsequent alleged acts of communication to the public have to be analysed with that in mind. For a second act of communication to the public on the internet to be an infringement in that case, there must be a new public (or new technical means) and for the former to be determined one must work out what public was taken into account when the first act of communication took place.
4. However the question of what public was taken into account when a work was the subject of a first communication to the public cannot be answered without knowing the nature of the subsequent act of communication which is alleged to infringe. The question is whether the public to whom the act of communication complained of is addressed was taken into account in giving the consent to the first act of communication?
5. Such as in Renckhoff where the photographer only consented to the work appearing on the first website and being seen by visitors to that first site, and not be taken to have consented to the work being seen posted on a second website by visitors to that second website, who amount to a different class of visitors.
6. This does not mean that the rightsholder should not understand that the internet includes linking and therefore the first website may be linked to from a second website and as a result being seen by anyone on the internet. 
7. If a person puts up a link to an unauthorised posting of a copyright work (such as in GS Media) then that act of communication is only an infringement if the person knew or ought to have known that the original posting was without any consent. 
8. In those circumstances persons acting for financial gain will be presumed to have the requisite knowledge but can call evidence to rebut that presumption, while for persons acting not for financial gain the presumption is reversed and they will be presumed not to have the requisite knowledge unless the contrary is proved. Either way, once the person posting the link is actually aware that the work was posted without the consent of the rights holder, they will commit an act of communication if they do not take down the link.

Assessment of the present case

TuneIn argued it provides nothing more than a directory or search engine which links users to websites containing relevant content, akin to Google but instead indexes and links to radio station streams. Further, they submitted that a conclusion in favour of the claimants interferes with the freedom of those publishing materials on other websites to use hyperlinks at all. 

Technical operation of TuneIn
shown in the judgement

Birss recognised that a conventional search engine provides a service which the functioning of the internet depends on. He distinguished between the conventional linking as cross-references on a website and operating as aggregators of links. What distinguishes TuneIn to the other linking cases is that instead of indexing and linking to websites generally, it indexes and links to the radio station's audio streams. TuneIn provides users with the ability to browse, search for and listen to stations in one place, who would otherwise have to find their way to the radio station website. This is different from Google, where the user leaves the search engine after the link is selected. One effect of this difference, noted by the court, is that the benefit of the advertising changes. [Although it is not the website bringing the complaint, and in these circumstances you would assume the advertising revenue of the radio station is mainly audio played on the station. As would be the case of embedding a YouTube video where the advert plays at the beginning of the video.]

One of the key factors, Birss points out is that when a station is selected, although a hyperlink to the stream is provided at a technical level, from the user's point of view content is provided to them at the TuneIn site. [This can be explained as the internal and external perspectives – showing how the case will fall differently depending on taking the facts of the technical function of the technology (external) or the users (internal) perspective. I argue, in my book that, copyright tends to be written from and applied using an external perspective – as in this case there is much focus on the technical operation of TuneIn, but often the reasoning turns over to the internal perspective to find a purposive result.] The other factors include that the links are to audio streams, the data collected by TuneIn allowing for search and the persistent nature of the content to which the user wishes to link – in the sense that the user remains within the TuneIn service, unlike when a user leaves Google after selecting a link.

As such, Birss found that TuneIn intervenes directly in the provision of the links to the streams in a manner which neither conventional search engines nor hyperlinks on conventional websites do. Therefore, the activity of TuneIn amounts to an act of communication of the relevant works; and that act of communication is to a "public", in the sense of being to an indeterminate and fairly large number of persons.

Conclusion

In a heartfelt conclusion, Birss tells us that this case was the last trial heard by Henry Carr J before his untimely death: “It has been my sad task to produce this judgment in a case which I know Carr J found stimulating.” Holding that:

• TuneIn's services infringes the claimants' copyright under s20 of the 1988 Act, insofar as it includes music radio stations which are not licensed in the UK or elsewhere (Category 2) and music radio stations which are licensed for a territory other than the UK (Category 3).
• TuneIn's services do not infringe the claimants' copyright in relation to music radio stations which are licensed in the UK (Category 1) [As the public is not new].
• Unsuprisingly, TuneIn's Pro app service which provides a recording function infringes the claimants' copyright under s20 of the CDPA 1988 (in Categories 1, 2, 3, and 4). Further, the users of the Pro app are infringing under s17 of the 1988 Act, although some but not all will have fallen within the defence in s70.
• TuneIn is liable for infringement by authorisation and as a joint tortfeasor and cannot rely on the safe harbour defences under Arts 12, 13 and 14 of the E-Commerce Directive.

Both sides were granted permission to appeal. In the meantime, the terms of the injunctive relief, the scope of the inquiry as to damages and costs was dealt with in a second judgement, discussed in Part 2 here.