TVCatchup 2 and the harmonising vision of the CJEU

What room does EU copyright leave for national initiatives in areas harmonised by relevant EU directives?

The question of EU preemption (linked to, yet distinct from, EU supremacy) in the area of copyright is not a new one. Personally, I have been very interested in it for a while [see here], and so has been apparently the Court of Justice of the European Union (CJEU). 

A string of recent copyright decisions demonstrates a diminished tolerance on the side of the Court for diverging national solutions to copyright protection in areas for which EU harmonisation has occurred. In this sense, the search of flexibilities in EU copyright has been proving increasingly challenging ... if not a vain quest altogether. 

Favouring internal market goals over pretty much anything else, the CJEU has not been shy in holding that certain national arrangements would be incompatible with EU law. In this sense, there is probably no need to recall the (endless) series of references for a preliminary ruling on national private copying exceptions and, a few months ago, the decision in Soulier, C-301/15 [here and - particularly - here], just to mention a couple of examples.

Now comes a further CJEU ruling in which this trend is once again visible.

Earlier this week, the Court issued its judgment in ITV Broadcasting v TVCatchup, C-275/15 (TV Catchup 2), a reference for a preliminary ruling from the Court of Appeal of England and Wales. 

Background to TVCatchup 2

If the parties' names sound familiar, it is because they are. A first reference for a preliminary ruling had been done at the first instance level, when the trial judge asked the CJEU to clarify - among other things - whether the provision of an unauthorised internet stream of a protected broadcast would amount to an act of communication to the public within Article 3(1) of the InfoSoc Directive [the CJEU said yes in 2013]. 

The case returned to the High Court of England and Wales, which ruled that - while the defendant, TV Catchup [currently in administration], would be prima facie liable under the UK equivalent Article 3(1) of the InfoSoc Directive, ie s20 of the Copyright, Designs and Patents Act (CDPA), it could nonethtlees rely on the defence provided within s73(2)(b) and (3) CDPA [pending the litigation between broadcasters and TVCatchup UK Government decided to repeal this provision].

Cables? They are Billy's speciality

This defence can [or rather, could] be invoked in an action for infringement of copyright in a broadcast or in any work included in a broadcast, applicable "where a wireless broadcast made from a place in the United Kingdom is received and immediately re-transmitted by cable". In the particular case at hand, s73(2)(b) and (3) means that copyright is [was] not infringed "if and to the extent that the broadcast is made for reception in the area in which it is re-transmitted by cable and forms part of a qualifying service".

The broadcasters appealed the High Court's decision. The Court of Appeal stayed the proceedings, and sought guidance on the interpretation of Article 9 of the InfoSoc Directive. This provides that the InfoSoc Directive "shall be without prejudice to provisions concerning in particular ... access to cable of broadcasting services ...".

The UK court asked the CJEU whether Article 9 of the InfoSoc Directive - specifically the concept of ‘access to cable of broadcasting services’ therein - must be interpreted as covering and permitting national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.

The Court's response

The CJEU [unsurprisingly] noted at the outset [para 17] that, in the absence of any express reference to the laws of the Member States, the concept of ‘access to cable of broadcasting services’ in Article 9 must be given an autonomous and uniform interpretation throughout the EU which takes into account the wording of that provision, its context and the objectives of the legislation of which it forms part.

Having said so:

1. The concept of 'access to cable' [used in Article 9 of the InfoSoc Directive] is different from that of ‘retransmission by cable’ [used in s73 CDPA], since only the latter concept designates, within the framework of the InfoSoc Directve, the transmission of audiovisual content.
2. In line with what Advocate General (AG) Saugmandsgaard Øe noted at para 55 of his Opinion, Article 1(2)(c) of the InfoSoc Directive deals expressly with ‘cable retransmission’, and excludes from the scope of the directive the provisions of EU law [notably the SatCab Directive, which the Court deemed not relevant to the background national proceedings: see para 21] governing that question.
3. Again unsurprisingly [the CJEU has consistently stressed this, including in the first TVCatchup case], the principal objective of the InfoSoc Directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public.

It follows that - as a rule - a retransmission by cable is subject to the authorisation of the relevant rightholder [the Court speaks of 'author' at para 24], unless this activity falls within one of the exceptions contained within the exhaustive list in Article 5 of the InfoSoc Directive [and, I would add, the relevant Member State whose law is applicable has transposed such exception into its own legal system]. This is not the case here.

Access is not the
same as re-transmission

The Court then recalled (with approval) that in his Opinion the AG had noted that the rationale of Article 9 is "to maintain the provisions applicable in areas other than that harmonised by the directive" [para 26], not to defeat the EU harmonising efforts:

"Indeed, an interpretation of Article 9 of [the InfoSoc Directive] to the effect that it permits a retransmission, such as that at issue in the main proceedings, without the consent of the authors, in cases other than those provided for in Article 5 of that directive, would run counter not only to the objective of Article 9, but also to the exhaustive nature of Article 5, and, consequently, would be detrimental to the achievement of the principal objective of that directive which is to establish a high level of protection of authors." [para 27]

The CJEU concluded that Article 9 of the InfoSoc Directive, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast. The Court also noted that this applies to works broadcast on TV channels subject to public service obligations.

In conclusion

Given UK Government’s choice to repeal s73 CDPA, the general impact of TVCatchup 2 in the UK is likely to be limited.

However, as mentioned at the beginning of this post, this decision is yet another reminder that greater harmonisation of Member States’ copyright laws appears to be a primary concern for the CJEU. The direct implication of this is that the Court is very vigilant when interpreting provisions in the relevant directives – notably the InfoSoc Directive – and not particularly keen in tolerating national solutions that go astray from what the relevant body of EU legislation allows Member States to do.