A Winter's Tale: if you can't take the heat, keep away from the Kitchin

Saucy attempt by Catchup fails to cut the mustard.  ITV Broadcasting Ltd and others v TV Catch Up Ltd  [2010] EWHC 3063 (Ch) was another of last week's Chancery Division decisions for England and Wales with which the IPKat has been struggling to catch up.  A ruling by Mr Justice Kitchin, it's another of those increasingly popular ways that true Brits try to keep warm in the chilly winter, by jumping up and down, yelling "We want summary judgment" [If this is way of keeping warm, shouldn't it be 'summer' judgment, asks Merpel]. In this case, ITV said "You're infringing"; TV Catchup (TVC) said "No we're not -- and you haven't a chance of succeeding if the case goes to trial!".  "Oh yes we have", said ITV.  "Prove it", said TVC.  And, before Kitchin J, that's exactly what ITV did.

So what was this all about?  ITV said TVC had infringed the copyright in its broadcasts by communicating those broadcasts to the public by 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 channel.  Once he made his choice, the viewer would be taken to a new screen on which TVC provided a stream of the programme being broadcast.

The ITV agreed that these transmissions to viewers were not "broadcasts" under section 6 of the Copyright, Designs and Patents Act 1988 and that TVC hadn't made ITV's broadcasts available to the public so that they could be accessed from a place and at a time individually chosen by them.  However, it was ITV's contention that TVC’s services were a communication of the broadcasts to the public by electronic transmission under section 20 of the same Act.  TVC was not impressed by all this legal stuff.  No, the company said, in order to infringe the copyright in a broadcast under section 20, the alleged infringer's transmission must itself be a broadcast within the meaning of section 6 -- and even the ITV agreed that it TVC's transmission wasn't a broadcast.  Since ITV's was therefore doomed to fail, could TVC please have summary judgment now and save the bother of having to go to court in order to win?

Kitchin J dismissed TVC's application for summary judgment on the basis that ITV had a real chance of success.

Like Mrs Justice Proudman in Newspaper Licensing Agency Ltd and others v Meltwater Holding BV and other companies [2010] EWHC 3099 (Ch) (see the IPKat's post here yesterday), he chose to start by looking at the Information Society Directive (Directive 2001/29). In this case, this was relevant because section 20 of the UK Act was intended to implement Article 3 of the Directive. On this basis, he held that the right of communication of a work to the public had to be interpreted broadly so as to cover all communication to members of the public who were not present at the place from where the communication originated.  That right therefore included, and was not limited to, broadcasting and access on demand.

Next, he expressed the view that section 20 gave the copyright owner the right to communicate any work to the public if it was a work listed in s.20(1): this included broadcasts.

Following Article 3 of the Directive, section.20(2) defined communication to the public as communication by electronic transmission. There were two specific ways in which such communication might take place (i) broadcasting the work and (ii) making the work available by electronic transmission on demand. This definition was however not limited to those forms of communication and also therefore covered all other acts which constituted communication to the public of the work by electronic transmission.

TVC argued that a broadcast could only be communicated by means of a mode of delivery which had the characteristics of a broadcast; these characteristics included transmission for simultaneous reception by members of the public (i.e. “one to many”), while TVC's transmission was “one to one”.  This argument confused the protected work (a transmission) and the restricted act (the act of transmission).

The Kat wonders whether the judge's analysis in this short, sharp preliminary matter will serve to determine the outcome of the dispute.

TV Catchup here
If you missed it in 1979, TV Ketchup here