Playing catch-up with TvCatchup

Sounds like
"catchup", tastes
like ketchup

Today, after an exciting day in town where his attention to friends was exceeded only by his inattention to incoming emails, the IPKat is playing catch-up. And would could be a more appropriate item to catch up on than the Catch-up case itself, ITV Broadcasting & others v TvCatchup. For on Monday Mr Justice Floyd (Chancery Division, England and Wales) gave a further judgment at [2011] EWHC 2977 (Pat), previously noted by the IPKat here. This ruling, which has led to the reference of a question for preliminary determination by the Court of Justice of the European Union, has already been the subject of a media release from Hogarth Chambers and a short note on the 1709 Blog.  The Kat has since received a neat little analytical note from a source who, for reasons of legal sensitivity declined to be named and who writes as follows:

"The saga between ITV and TV Catch Up ("TVC") has been ongoing for some time: on 18 July 2011 Mr Justice Floyd referred certain questions concerning "communication to the public" of films and broadcasts and "reproduction of a substantial part" of broadcasts in memory buffers and on screens to the CJEU. He also gave a provisional view on the application of the "temporary copies" exception to buffer copies and screen copies, but deferred giving judgment until the decision in Joined Cases C-403/08 and 429/08 FAPL.

The CJEU handed down its decision on 4 October. Having had time to cogitate the issues, Mr Justice Floyd gave a decision explaining whether the questions he had referred still needed referring, and applying FAPL to the facts in this case.

Should there be a reference on communication to the public?

In answering this question Mr Justice Floyd referred to Joined Cases C-431 and 432/09 Airfield, where the CJEU held that copyright holders must authorise any communication to the public and that there must be authorisation where a person intervenes in a communication to the public that makes the protected works "accessible to a new public". Such further authorisation, the court added is not required where such communication is limited to the "mere provision of physical facilities for enabling or making the communication" (in accordance with Recital 27 in the preamble to Directive 2001/29), concluding that the acts of Airfield and Canaal Digital in that instance did require authorisation.

Mr Justice Floyd held that Airfield was consistent with his original view that authorisation was required. However, he was not persuaded by the principle of law at issue in this instance was rendered acte clair by Airfield since that ruling did not clearly set out what amounts to a communication to the public in this context. The concept of a "new public" was particularly baffling: was this new public additional to the public targeted by broadcasters -- or was it a completely separate public?

The following question was therefore referred to the CJEU:

"Does the right to authorise or prohibit a "communication to the public of their works by wire or wireless means" in Article 3.1 of the Directive extend to a case where:
(i) Authors authorise the inclusion of their works in a terrestrial free to air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;
(ii) A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party's server and receive the content of the broadcast by means of an internet stream?
Does it make any difference to the answer to the above question if:
(a) The third party's server allows only a "one to one" connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?
(b) The third party's service is funded by advertising which is presented "pre roll" (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or "in skin" (i.e. within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?
(c) the intervening organisation is:
(i) providing an alternative service to that of the original broadcaster, thereby acting in competition with the original broadcaster for viewers; or
(ii) acting in competition with the original broadcaster for advertising revenues?"

This is by no means the first reference to the CJEU on the meaning of the words "communication to the public".

Reproduction of a substantial part

Mr Justice Floyd referred to the ECJ's decision in FAPL which made it clear that the "rolling" approach to reproduction of Berne works was incorrect. He therefore held that it was necessary to look at the question in relation to the "transient fragments". On this basis there was reproduction of a substantial part of the films in the memory buffers of TVC's servers. He said that "the segments of the films stored in the buffers must be sufficient … to satisfy the tests in Case C-5/08 Infopaq as now explained in FAPL", adding that reproduction of the films on the screens was not established.

He did not think that this point warranted reference to the CJEU: it was not rational to apply the rolling basis to broadcasts when it does not apply to films and, absent the rolling basis, it was not sensible to argue that there could be reproduction of a substantial part of a broadcast.

In any event, in this case the point was academic: the claimants would either succeed on the communication to the public point, and so would be entitled to relief under that heading, or the defence under Article 5(1) of the would succeed and there would be no need to determine the point of law raised here.

Defence under Article 5(1)

This is the first time that the decision in FAPL regarding the temporary copies exception has been applied in the UK. It is therefore anticipated that this decision will be read eagerly by many, who may be disappointed that the analysis of Article 5(1) of the InfoSoc Directive ("Exceptions and Limitations") stretches only to just over one side of A4.

In July Mr Justice Floyd formed the provisional view that the reproductions in the buffers had no independent economic significance, but that the position in relation to the screens was arguable. In FAPL the Court found that the economic significance of broadcast must be "independent", that is to say, that it must go "beyond the mere economic advantage derived from mere reception of a broadcast containing protected works…"  Mr Justice Floyd therefore held that the transient copies must have economic significance independently of the advantage to be derived from the (lawful) technological process concerned. That does not however mean that the defence automatically succeeds, as use of the work must also be lawful.  And as Mr Justice Floyd has referred the question of whether TVC's activities amount to "communication to the public" the answer to whether the temporary copies exception applies in this instance will depend on the decision of the CJEU.

Reference on s.73 ("Reception and re-transmission of wireless broadcast by cable")

Finally Mr Justice Floyd gave some though to whether is was possible to construe s. 73 of the UK's Copyright, Designs and Patents Act 1988, applying the Marleasing principle, as confined to analogue channels. He held that there is no real doubt as to what the Marleasing principle is, and it was therefore not appropriate to ask the CJEU for guidance on this point.

In summary: this short judgment gives little clarity to this murky area of the law. We can take some comfort however that it now appears to be clear that reproduction of transient fragments in memory buffers can amount to reproduction of a substantial part of a film, but that the same reproduction has no independent economic significance".

The IPKat is wondering whether it's time to revisit the question whether the Court of Justice of the European Union should be abbreviated as CJEU, rather than ECJ. She notes that a poll of jiplp blog readers in January 2011 came out heavily in favour of ECJ (69%) while just 25% favoured CJEU -- but he notes that more people are using CJEU these days and wonders whether readers' preferences have changed. Says Merpel, we should have a poll to see whether we need a poll ...

Catching TV viewers here