UK Court of Appeal will not depart from EU on Communication to the Public: TuneIn Radio

As previously reported by the IPKat here in 2019 the High Court of England and Wales weighed in on communication to the public, in what the court called 'a test case' about infringement of copyright in sound recordings accessed via an online platform that connects users to radio stations around the world. 

Facts & first instance 

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

The defendant – TuneIn - is a US technology company, that operates an online platform which enables their 75 million monthly active users to access over 100,000 radio stations around the world. TuneIn Radio is available via a website and app, its free for registered and unregistered users, and includes a paid for advert-free version (TuneIn Radio Pro). TuneIn has partnership deals that mean it is pre-installed on a number of devices such as Bose, Sonos and Sony PlayStation [yes, Sony] as well as connected TV and connected cars.

The claimants sued the defendants for copyright infringement by way of communication to the public and in 2019, Mr Justice Birss substantially, although not entirely, upheld the claims, finding that:

 

• TuneIn's services infringed the claimants' copyright under s20 of the CDPA 1988, insofar as it included music radio stations which were not licensed in the UK or elsewhere (Category 2) and music radio stations which were licensed for a territory other than the UK (Category 3).

• TuneIn's services did not infringe the claimants' copyright in relation to music radio stations which were licensed in the UK (Category 1) [As the public is not new].

• TuneIn's Pro app service which provides a recording function infringed the claimants' copyright under s20 CDPA 1988 in Categories 1, 2, 3, and 4 (premium music radio stations). Further, the users of the Pro app were found to be infringing under s17 CDPA 988, although some, but not all, will have fallen within the defence of s70.

• TuneIn was also found liable for infringement by authorisation and as a joint tortfeasor and could not rely on the safe harbour defences under Arts 12, 13 and 14 of the E-Commerce Directive.

TuneIn Appeal the case and all the EU law of Communication to the Public... 

The case was appealed by TuneIn, and the judgement was handed down by Lord Justice Arnold on 26th March 2021.

In the meantime, as we know, the UK departed from the EU. However, this does not affect EU-derived domestic legislation such as s20 CDPA 1988 which implemented the Information Society Directive, such legislation remains in effect unless and until it is repealed or amended. The meaning of the expression 'communication to the public' has so far been considered by the CJEU in a series of 25 judgments and reasoned orders spanning over 14 years. This case law is also retained, meaning that they continue to form part of domestic law post-Brexit and continue to bind lower courts.

TuneIn contended that the Court should exercise its power to depart from such judgments in the sense that the Supreme Court and Court of Appeals has the power to depart from one of its own precedents - which it has consistently stated that this is a power to be exercised with great caution.

In its grounds of appeal TuneIn boldly stated that the Court should depart from the decisions of the CJEU on hyperlinking including Svensson and GS Media. TuneIn's primary contention was that the Court should depart from the entire body of case law of the CJEU on communication to the public, and that its alternative contention was that the Court should depart from GS Media. 

Lord JusticeArnold stated that the Court should not depart from the CJEU's jurisprudence in the present case for eight reasons, in paras [77]-[89], summarised (and paraphrased!) here:

1. There has been no change in the domestic legislation. Now that the UK has left the EU, it will be open to Parliament to amend s20 if it sees fit, subject to the UK's international obligations. 
2. There has been no change in the international legislative framework. Since Article 3(1) and (2) of the InfoSoc Directive gives effect to Article 8 of the WIPO Copyright Treaty and Article 14 of the WIPO Performances and Phonograms Treaty, and as the CJEU has repeatedly stated in its case law that it should be interpreted consistently with the Copyright Treaty, even if this Court was not bound by the CJEU case law, it would adopt the same approach to s20 CDPA 1988.
3. Interpreting communication to the public is a difficult task, due to the absence of guidance in the legislation and the conflict between the broad nature of the right forming part of copyright which is territorial and exploited on a territorial basis on the one hand, and the global and interconnected nature of the internet on the other hand. LJ Arnold stated that the CJEU has unrivalled experience in confronting this issue, developing and redefining its jurisprudence over time. "The jurisprudence is not free from difficulty or criticism, but it does not follow that better solutions are readily to hand."
4. TuneIn cited academic literature that criticised CJEU's case law, but LJ Arnold pointed out that there is also academic commentary that supports the proposition that hyperlinking may amount to communication to the public at least in some circumstances.
5. TuneIn also suggested that the Court could derive assistance from the case law of courts outside the EU, such as Australia, Canada and the USA, but the statutory framework differs in those countries and the case law cannot be said to offer settled or consistent guidance on the present issues.
6. Accepting TuneIn's primary contention that we should return to the drawing board and start all over again would create considerable legal uncertainty. In any event, LJ Arnold found that the interpretation of 'communication to the public' advanced by TuneIn would not actually provide them with a clear defence to infringement. 
7. TuneIn's alternative contention that, even if it does not depart from the remainder of the case law, the Court should depart from GS Media, essentially made no sense - why depart from GS Media and not later cases such as Filmspeler, Pirate Bay and Renckhoff...
8. The principal reason given by counsel for TuneIn for departing from GS Media was the mental element imposed by the CJEU in that case, submitting that this confused primary liability for copyright infringement with accessory liability, pointing out that accessory liability was not harmonised by EU law. This is another criticism of the CJEU's jurisprudence which receives support from academic commentary. LJ Arnold pointed out, however, with the minor exception of authorising restricted acts in copyright, UK statutes are silent on accessory liability. The courts have filled this gap by applying the common law doctrine of joint tortfeasance. In any event, he stated, abandoning the CJEU's approach would not necessarily assist TuneIn. 

Lord Justice Arnold thus found that, the CJEU's approach to the law of infringement of copyright by communication to the public is neither impeding nor restricting the proper development of the law, nor is it leading to results which are unjust or contrary to public policy, and therefore the Court should not depart from its jurisprudence.

 Two can play that game you're playiinnngg...
Image: Mikey G Ottawa

In light of this, in a detailed judgment, LJ Arnold concluded that the judge was correct to hold that TuneIn infringed the Claimants' copyrights with respect to the category 3 stations. However, he allowed the appeal against the judge's conclusion that TuneIn was liable for infringement by communication to the public in relation to the category 1 stations by virtue of providing the Pro app to UK users with the record function enabled. 

Category 1: Liability falls on TuneIn Radio Pro app users 

In the first instance, it had been found that TuneIn had infringed in relation to all 4 categories of stations, including category 1 since the Pro app including the record function was a different technical means to the original communication, and thus there was communication to the public regardless of whether there was a new public, for the following reasons:

"175. I find that the inclusion of this feature makes a material difference to the nature of TuneIn's act of communication via the app, at least when one considers users contemplating its use (and there are a substantial number of those). When that sort of user selects and listens to an internet radio station using the app which includes the recording function it seems to me that one cannot describe TuneIn's service as nothing more than a form of linking, conventional or unconventional. A user who wants to create a library of music by a particular artist can use TuneIn's Pro app to search for internet radio stations playing that artist, listen to the streams and make recordings of the claimants' works on their device. It is TuneIn's intervention which makes feasible something which would be wholly impractical for a user otherwise.

176. TuneIn argued that the claimants case muddled up two rights, the right of communication to the public and the reproduction right. I do not accept that. Making the recording relies on the act of communication undertaken by TuneIn. In providing a user with an integrated means of finding internet radio stations, playing them through the TuneIn app and then recording and playing back individual works the subject of the claimant's rights, TuneIn has converted the internet radio station's streaming service into a permanent download on demand service.

177. Although of course it is true that the internet is the medium by which the stream is conveyed to the user's device, I find that the Pro app itself, containing the integrated function, running on the user's device is a new and different technical means from that by which the original internet radio station was provided. That finding applies to all three of Categories 1, 2 and 3."

TuneIn contended that this reasoning confused the communication to the public right with the reproduction right. LJ Arnold agreed. The starting point is the stream simulcast or webcast by the foreign station. The act of communication is the provision by the Pro app of the link to that stream. That involves precisely the same technical means as the original communication. It makes no difference if the Pro app has the record function enabled. First, this cannot depend on whether the user activates the record function or not. Secondly, the mere potential for the user to record the stream does not affect the provision of the stream in any way. The communication remains the link to the stream.

The Claimants contended that, even if there was no new technical means, there was a new public because the rightsholders would not have taken into account the possibility of users recording their repertoire. This argument was not accepted by the Court, as the presence or absence of the record function in the Pro app makes no difference to the public which was taken into account by the rights holders when they authorised the original communication by the category 1 stations: it remains the public in the UK. It is true that the rightholders did not grant a licence which extended to reproduction of sound recordings by users, but the consequence of this is that users who made recordings within the Claimants' repertoire infringed the Claimants' rights unless those users could rely upon a relevant exception or limitation.