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Court of Appeal rejects chance to diverge from EU copyright law

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The UK's divergence from EU law is unlikely to be hastened by the Court of Appeal in London if the reasons it gave for following the case law of the Court of Justice of the EU (CJEU) in a recent copyright ruling is anything to go by, according to a brand protection and creative rights expert.

Gill Dennis of Pinsent Masons, the law firm behind Out-Law, was commenting after the court referred to CJEU case law to help it determine the outcome of an appeal raised in a case that concerned how copyright law should apply to the online practice of hyperlinking.

Dennis Gill_November 2019

Gill Dennis

Senior Practice Development Lawyer

It is clear from the judgment that the judges, at least in this court, have no intention of hastening legal divergence between the UK and EU and that they consider any significant legal change will need to come via legislation

The legislation relevant to the case was section 20 of the UK's Copyright, Designs and Patents Act (CDPA).

The provisions outlined in section 20 of the CDPA implement EU copyright laws that provide content creators with, among other things, the exclusive right to control the "communication to the public of their works". It is generally an infringement of those rights if others communicate the content without permission from rights holders to do so, although some limitations and defences do apply.

Several courts around Europe have considered cases that have centred on the issue of whether or not there has been unauthorised 'communication to the public' of copyright works. A number of those cases have specifically involved consideration of the law in the context of hyperlinking, with the cases of Svensson, GS Media, Renckhoff and, most lately, VG Bild-Kunst, all having been ruled on by the CJEU in this regard.

In light of Brexit, and the end of the Brexit transition period at the end of 2020, the Court of Appeal considered whether it should "depart from the jurisprudence of the CJEU" in considering the appeal before it. The court cited a number of reasons for not doing so.

The first reason it highlighted was the fact there have been no post-Brexit legislative changes made to section 20 of the CDPA, which it said demonstrated "the will of parliament". It also highlighted that there has been "no change in the international legislative framework" either – recognising that the EU legislation from which section 20 of the CDPA is derived itself gives effect to two treaties developed by the World Intellectual Property Organisation (WIPO).

"Courts of the [WIPO treaties'] contracting states should be striving for consistency of interpretation, rather than unilaterally adopting their own interpretations," said Lord Justice Arnold in his leading judgment for the court.

A further reason given was the difficulty in interpreting the concept of 'communication to the public'. Lord Justice Arnold said there is an absence of guidance on the relevant UK, EU and WIPO legislation on the matter, and added that the CJEU "has unrivalled experience" in addressing "the conflict between the broad nature of the right of communication to the public forming part of copyrights which are territorial rights exploited on a territorial basis … and the global and interconnected nature of the internet".

"The jurisprudence is not free from difficulty or criticism, but it does not follow that better solutions are readily to hand," he said.

Gill Dennis of Pinsent Masons said: "Post-Brexit, the CJEU case law on 'communication to the public' and hyperlinking, with the exception of the ruling last month in the case of VG Bild-Kunst, constitutes 'retained EU case law' meaning that it continues to form part of domestic law in the UK and to bind lower courts. However, the Court of Appeal and the Supreme Court have recently been given the power to depart from such judgments. It is noteworthy that in this case all of the judges strongly declined to do so."

"They also chose to apply the CJEU’s ruling in the case of VG Bild-Kunst, which they had no obligation to do as it was handed down after the Brexit transition period had ended. It is clear from the judgment that the judges, at least in this court, have no intention of hastening legal divergence between the UK and EU and that they consider any significant legal change will need to come via legislation," she said.

The case before the Court of Appeal involved TuneIn, a US technology company, and two major recording studios, Warner Music and Sony Music Entertainment.

TuneIn operates an online platform, providing a service which enables users to access radio stations around the world. The TuneIn radio service provides users with a browseable and searchable platform of radio stations and other audio content, which enables users to select and listen to music radio stations, and the links it provides allow UK users to access the audio content of around tens of thousands of radio stations globally.

TuneIn’s service also actively helps registered users find radio content appealing to their tastes; for example, by allowing them to search for stations currently playing tracks from their favourite artists, or by recommending stations to users based on their play history. The TuneIn app also allowed users to record music being streamed from the radio stations onto their mobile device and replay on demand. 

Warner Music and Sony Music Entertainment, as owner of the copyright in a vast collection of sound recordings played on the various radio stations, were largely successful in leading a legal challenge against TuneIn for copyright infringement before the High Court, which ruled on the case in 2019.

According to the Court of Appeal's ruling, TuneIn claimed that the High Court judge had "erred in numerous respects" and asked the appeal court to overturn the decision. The Court of Appeal largely dismissed the company's legal arguments, but it did uphold one part of its appeal.

In its ruling, the High Court had considered that TuneIn was not responsible for copyright infringement in respect of enabling users of its website to access certain radio stations that UK users were able to access freely without having to go through access restrictions or a registration process – referred to in the judgment as 'category 1 stations'. However, it did consider that TuneIn was responsible for copyright infringement by allowing its app users to record the sound recordings from those radio stations.

The Court of Appeal said, though, that while TuneIn's web platform and 'Pro' app use "different technical means" to communicate the sound recordings to users, the public considered to be accessing the recordings via the two mediums is the same. This finding was relevant to TuneIn's case because, in line with case law, alleged infringers have to have communicated copyright works to a 'new public' from the one which licensed distributors of the works reach – such as radio stations, in this case – to be held liable for primary infringement.

"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," Lord Justice Arnold said.

However, the court said that TuneIn had "authorised the infringements by UK users of the Pro app record function". It said that Warner Music and Sony Music Entertainment had not granted a licence in respect of its sound recordings which extended to reproduction of sound recordings by users. TuneIn had not challenged that users had a defence to such infringement in its appeal.

Co-written by Aumair Qayum of Pinsent Masons.

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