BREAKING: High Court of England and Wales weighs in on communication to the public and linking

This morning the High Court of England and Wales ruled in an important case - a "test case" according to the court - concerning the right of communication to the public over the internet, including linking in the aftermath of the CJEU judgment in GS Media [Katposts here], as well as other communication to the public cases.

As Birss J pointed out in the opening paragraph of his 212-paragraph judgment in Warner Music and Another v TuneIn Inc [the judgment is not yet available on Bailii, but a copy and a summary of the decision can be retrieved from Mediawrites, the blog of one of the law firms that acted in this case],

It is a test case about infringement of copyright in sound recordings under section 20 of the Copyright, Designs and Patents Act 1988 [by which the UK transposed Article 3 of the InfoSoc Directive into its own law]. Section 20 provides for the communication right in UK law. A balance has to be struck between the interests of the copyright owner in protecting its exclusive rights, and the interests of the public in freedom of access to the internet. The claimants say that a finding for the defendant will fatally undermine copyright. The defendant says that a finding for the claimants will break the internet. 

Background

The case concerned the activity of TuneIn (both mobile app and website), an internet radio which provides a service (TuneIn Radio, available both for free and as a premium service, so that the service is monetized through ads or subscriptions) that enables users to access radio stations around the world. 

TuneIn’s apps are also pre-installed on a number of devices (eg, Bose, Sonos and Sony PlayStation). 

As a result, TuneIn Radio is now available on over 200 platform connected devices (smartphones, tablets, televisions, car audio systems, smart speakers, and wearable technologies) and has links to over 100,000 radio stations, broadcast by third parties from many different geographic locations around the world. 

To facilitate searching, browsing and playback of audio content, TuneIn collects and stores metadata about content being transmitted by internet radio stations. The metadata is used to assist with search optimization, to display stations to browsing users and to display during playback. TuneIn does not, however, collect, transmit or store any third party audio content; it connects the users to – and therefore relies upon – third party radio stations’ streams.

The claimants, Warner Music and Sony Music, own or hold the exclusive licences to copyright in sound recordings of music and together account for more than half the market for digital sales of recorded music in the UK and about 43% globally. 

They submitted that TuneIn requires a licence from them for the direct doing of acts of communication to the public.

As explained in the judgment,

This is strongly disputed by TuneIn, on the basis that it does not transmit or store any music, and merely provides users of TuneIn Radio with hyperlinks to works which have already been made freely available on the internet without any geographic or other restriction.

Today's judgment

Following an assessment of the applicability of UK copyright law using the targeting approach and a recap of how the concept of communication to the public over the internet has developed through domestic and EU case law, in today's judgment the High Court ruled that:

• The unlicensed provision to UK-based users of links to radio stations that are already licensed in the UK is not an act of communication to the public and is, therefore, non-infringing;
• The unlicensed provision to UK-based users of links to radio stations that are not licensed in the UK or are not licensed at all is an act of communication to the public which infringes copyright.

Quite interestingly, the judge found that, inter alia, a case like Ziggo (the Pirate Bay case; Katposts here) would not add "anything relevant to the questions" that needed to be decided (at [93]).

The judgment is an important one, also because it contains a review of a series of CJEU rulings on communication to the public and an attempt to "reconcile the approaches" taken in them (at [99]).

A more detailed analysis of the reasoning will be provided in due course.