TV Catchup case goes to Europe

Cast your mind back to last December and you might recall, though the midst of winter's murky memories, a bright and cheeky interlude in which the recently-promoted Mr Justice Kitchin starred, ITV Broadcasting Ltd and others v TV Catch Up Ltd [2010] EWHC 3063 (Ch).  This was a copyright infringement action with a twist to it: instead of sitting there and waiting to be sued, the defendant (TV Catchup) decided to take the initiative and go apply in summary proceedings for the action against it to be dismissed on the basis that it had no chance of succeeding at trial. The outcome, which was a little bit like what happens when a fly picks a fight with an oncoming windscreen, was a decision not to dismiss the action straight off but to allow the claimant copyright owners to have their day -- four days as it turned out -- in court (click here for the IPKat's note on the summary judgment application).

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'"

The ITV agreed that these transmissions to viewers were not "broadcasts" under section 6 of the Copyright, Designs and Patents Act 1988 (CDPA) 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, ITV did feel that TVC’s services, which, er, communicated its broadcasts to the public by means of an electronic transmission were, if it might be so bold as to suggest this possibility, a communication of the broadcasts to the public by electronic transmission under section 20 of the same Act. TVC disagreed: in its view, 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 (which even the ITV agreed it wasn't). Mr Justice Kitchin thought this line of attack, ingenious and original though it might be, had no chance of succeeding, so we all looked forward to the trial.

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 judge's at-a-glance ruling goes like this:

• 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"].

So, all in all, errors and omissions excepted and without prejudice to anything that the Court of Justice may say, do or think in the future, this looks like a fairly good day in court for the commercial broadcasters. But what do the Kats say?

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.