Playing Catchup - CJEU clarifies that streaming is "communication to the public"

Yawn.....

It has been an awfully long day for the AmeriKat. And although she is falling asleep even pawing these words at her keyboard, she must report on the awfully busy day for the Court of Justice of the European Union.  Today  two decisions/opinions dealing with scope of copyright in the new media were delivered.  First, the Advocate-General's Opinion  in the Amazon.com reference from the Austrian courts (see Eleonora's excellent summary here) and second, the CJEU's decision in the ITV v TVCatchup reference from Mr Justice Floyd in the English courts.

Background

For those not up to speed, broadcasters including ITV alleged that TVCatchup had infringed the copyright in its broadcasts by communicating those broadcasts to the public through a process of electronic transmission.  TVCatchup's website allowed viewers to watch "live" streams of television broadcasts on their computers, smart phones or games consoles. However, viewers could only view streams to which they were legally entitled to watch in the United Kingdom by virtue of their television licence.  TVCatchup's service was funded by audiovisual advertising shown before the user could watch the live stream. (For more background on the TV Catchup saga read previous IPKat reports here).

The Law

The provision at issue was Article 3(1) of the InfoSoc Directive which states that

"Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them."

The Questions

The judge asked two main questions.  Broadly speaking:

1.  Whether the right of a copyright owner to authorize a "communication to the public" extended to the case where a third party provides a service whereby subscribers can stream content from a broadcast where that broadcast was originally intended for that area. 

2.  If it made any difference where that third party's server allowed only a one-to-one connection to each subscriber, where that third party's service is funded by advertising or where that intervening organization is acting in direct competition with the original broadcaster.

The Answers

The Court noted that the purpose of the InfoSoc Dreictive was to, as referred to in Recital 23, provide a high level of protection to authors.  It follows from this broad interpretation that the author's right of communication to the public covers any transmission or retransmission of the work to the public not present at the place where the communication originates by wire or wireless means, including broadcasting.  Authorizing the inclusion of protected works in a communication to the public does not exhaust the right to authorize or prohibit other communications of those works to the public as made clear by Article 3(3).

So, the operative part of the CJEU's decision therefore provided:

1. The concept of ‘communication to the public  must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast 

– where the retransmission is made by an organisation other than the original broadcaster,
– by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server,
– even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver. 

2. The answer to Question 1 is not influenced by the fact that a retransmission, such as that at issue in the main proceedings, is funded by advertising and is therefore of a profit-making nature. 

3. The answer to Question 1 is not influenced by the fact that a retransmission, such as that at issue in the main proceedings, is made by an organisation which is acting in direct competition with the original broadcaster.

The Practical Point

This decision is likely to be welcomed by broadcasters and content owners.  By stating that transmission and retransmission of works (even where those streaming the content were legally permitted to view the original broadcast) constitutes a "communication to the public", the CJEU can be seen to be firmly putting the act of  streaming in these circumstances into the restricted copyright category requiring the rightsowner's permission.  But the AmeriKat wonders how much of a surprise this is given the broad drafting and clear (to her mind) intention contained in the InfoSoc's recitals?

Another interesting point is the Court's debate about "new public".  In the Airfield and FAPL references, the CJEU held that copyright owners must authorize any communication to the public.  Such authorization was required where a person makes the protected work "accessible to a new public".  The requirement of what "new public" meant lead many practitioners to scratch their heads.   Was this "new public" a completely separate public, a public who was not originally targeted to receive the original broadcast, or....what?  TVCatchup of course argued that subscribers were not "a new public" as they were already legally entitled to receive the original broadcast.

The CJEU distinguished the cases in Airfield and FAPL with that of TVCatchup stating that the requirement of "new public is only relevant in the situations which the Court of Justice had to rule in the cases giving rise to the judgments in" in FAPL and Airfield.  The concept of "new public" has not gone away, but its role seems to be a bit fluid following this judgment.  The AmeriKat, with weary eyes and now napping neurons, cannot presently understand where the CJEU is going with their comments in paragraphs 37-39 on "new public" and where the legal distinction lies (or should lie).  Indeed, she doubts it has done much to clarify the original questions that Mr Justice Floyd had on this point (see para 23 of his judgment).  What do our eagle-eyed readers think?

In the meantime, the case will hop back to the English courts ready for Mr Justice Floyd to apply the thankfully brief 9 page judgment.  Or, like many CJEU references, it may get kicked into the long grass while the parties and the judge analyze every line....

But, in the meantime, for TVCatchup's interpretation of today's decision and the impact on its business model, click here.