The English Court has sought clarification on whether s73 CDPA (the defence for regionalised retransmission of broadcasts by cable) is compatible with Article 9 of the InfoSoc Directive (2001/29/EC) and covers streaming of public service broadcasts via the Internet. The Court of Appeal asked for this guidance even though the parties did not request it, illustrating the importance of avoiding any incompatibility between EU and national legislation.
In the meantime, the Court of Appeal ruled that TVCatchup is not entitled to stream public service channels across mobile networks.
The Claimants are well known national television broadcasters (ITV, Channel 4 and Channel 5). The Defendant ("TVC") operates a website, which enables members of the public to watch live television on computers, smart phones and games consoles by intercepting the broadcast signal and live-streaming it via its website. The broadcasters claim that TVC infringes copyright by communicating the broadcasts to the public.
S73 of the Copyright, Designs and Patents Act 1988 ("CDPA") is a defence to copyright infringement and permits reception and re-transmission of broadcasts without the authority of the broadcaster or copyright owner where a wireless broadcast made from within the UK is received and immediately re-transmitted by cable, to the extent that the broadcast is made for reception in the area in which it is retransmitted.
Article 9 of the InfoSoc Directive states that the InfoSoc Directive is without prejudice to provision concerning … "access to cable of broadcasting services…".
Article 5(3)(o) of the InfoSoc Directive allows member states to maintain minor exceptions to copyright infringement for analogue uses that do not affect the free circulation of goods and services within the EU.
CJEU Ruling - Communication to the Public
In 2013 the CJEU ruled that television broadcasters may prohibit the retransmission of their programmes by another company via the Internet. A website operator who intercepts and live-streams a TV broadcaster's signal on the Internet is "communicating the copyright works to the public", which must be authorised by the copyright owner. When a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must be individually authorised by its author.
Defence under s73 CDPA
The aspect of the case now in issue is whether TVC have a defence under s73 CDPA.
In June 2011, Floyd J ruled that the cabling system inherent in the Internet could be regarded as "cable" for the purposes of s73 CDPA, provided that the whole or substantially the whole of the retransmission was by cable and the retransmission was to the area in which it was intended the original broadcast should be received. Accordingly, the defence applied in relation to retransmission by TVC via the Internet to end users, including where the final leg of the transmission took place by wi-fi. However, it excluded retransmissions by cable to an antenna and then transmission via any mobile phone network for reception by mobile phones. In October 2013, the judge made a declaration that it was not possible to interpret s73 CDPA so as to be compatible with Article 5(3)(o) of the InfoSoc Directive, which the broadcasters had argued would be the only basis for the defence.
Both parties appealled. TVC argued that the s73 defence should extend to Internet transmissions and retransmissions for reception by mobile devices. The broadcasters argued that the defence only extended to transmission on dedicated cable networks operated by a conventional cable programme provider (e.g. Virgin Media).
In January 2014, the Court gave the Secretary of State permission to intervene in this case as it has an interest in any incompatibility between EU and national legislation. In June 2014, Virgin Media were also granted permission to intervene because it operates a national cable network providing retransmitted digital cable TV services and relies upon the s73 defence to prevent its retransmission from being an infringement of copyright. Virgin maintains that a significant part of its business depends upon the outcome of the appeal.
Court of Appeal Reference
The Court of Appeal rejected TVC's argument that s73 extended to transmissions to mobile phones. Kitchin LJ gave the leading judgment and stated his preliminary view that, by Article 9 of the InfoSoc Directive, the EU legislature intended the retention of s73 CDPA covering transmission over the Internet. However, the Court stayed the argument and sought a reference from the CJEU on the proper scope of Article 9 of the InfoSoc Directive.
The exact question to be referred to the CJEU has yet to be formulated by the parties. However, the Court has stated that it would like clarification on whether Article 9 of the InfoSoc Directive permits a Member State to retain a provision, such as s73 CDPA, which affords a defence, both to an allegation of infringement of copyright in broadcasts, and of the copyright in any work included in the broadcasts arising from the streaming of public service broadcasts, to members of the public where that streaming takes place by wire, via the Internet (but not mobiles) and/or, to users situated in the original broadcast area.
It is interesting that the Court decided to make the reference even though the parties did not request it. The Court thought it was regrettable that this was the second reference needed in this case and the parties will no doubt be unhappy about the further delay in resolving the dispute. However, the interventions by the government and Virgin highlight the importance of the case to the cable industry and internet streaming services as well as uniformity across the EU. In the meantime, the Court's ruling means that TVC is not allowed to stream broadcasts to mobile phones.
The Court of Appeal also noted that the EU Commission has sent an Article 258 notice to the UK government on s73 CDPA, which implies that the EU considers that the UK has failed to fulfil its treaty obligations in respect of this defence. However, the Court still thought a further reference was the correct course and none of the parties suggested that the notice should affect this decision.