Out-Law News | 15 Oct 2013 | 2:23 pm | 3 min. read
However, the High Court has ruled that TVCatchup is not restrained from retransmitting ITV, Channel 4 and Channel 5 programmes to a UK audience over the internet.
Lord Justice Floyd ruled that TVCatchup has a defence against claims that it infringed the rights of the broadcasters under UK copyright laws (6-page / 167KB PDF) in relation to the way it streams the programmes to members of the public via "cable".
TVCatchup.com relays free-to-air TV channels to users of computers and mobile devices. Broadcasters ITV, Channel 4 and Channel 5 claimed that it uses material they have the rights to without permission.
UK copyright laws state that the unauthorised communication of rights holders' content to the public is an act restricted by copyright in certain circumstances.
Under the Copyright, Design and Patents Act (CDPA), copyrighted material is communicated to the public unlawfully if a broadcast or film is made available to the public via an "electronic transmission" in a broadcast that is accessible by the public "from a place and at a time individually chosen by them".
That section of the Act was introduced by The Copyright and Related Rights Regulations in 2003 to implement the EU's Information Society Directive.
The Directive states that broadcasters' rights in copyright apply broadly to all communications to the public not made by the rights-holding broadcaster. This right "should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting", according to the Directive. However, the Directive leaves in tact certain rights applicable to the broadcasting of programmes as provided for under a separate EU Directive which governs the coordination of certain rules relating to satellite broadcasting and cable retransmission.
Under UK copyright laws, temporary copies are not unlawful if they are "transient or incidental" to the whole works and are made in order to ensure the programme is technically broadcast with "no independent significance".
Section 73 of the CDPA sets out a carve out from the separate rights that broadcasters enjoy. It permits the unlicensed re-transmission of broadcasts transmitted over cable networks by ITV, Channel 4 and Channel 5 and other listed 'qualifying services' by others within the area in which the original transmissions are received, subject to compliance with the wider copyright rules relating to the reproduction and making available of their content.
In 2011 Lord Justice Floyd found that TVCatchup stores some video when it streams content to viewers. He said that approximately 30 to 40 seconds worth of material is stored when the material is streamed via Apple devices.
The judge ruled that TVCatchup did reproduce substantial parts of copyrighted films shown by the broadcasters when it stored data that 'buffers' before playing on users' screens. Buffering occurs when data being loaded is processed at a different rate at which it is being received, causing a slight delay in the material being loaded.
TVCatchup disputed whether its service involved communicating the broadcasters' programmes to the public. In one of two 2011 judgments issued in the case, Lord Justice Floyd said that it was his "provisional opinion" that TVCatchup's streaming service did involve a communication to the public, but he referred the matter to the Court of Justice of the European Union (CJEU) to clarify how the EU's Information Society Directive should be interpreted before definitively ruling on the point.
In March this year, the CJEU said: "The concept of ‘communication to the public’ ... covers a retransmission of the works included in a terrestrial television broadcast where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver."
In his latest order, Lord Justice Floyd ruled that TVCatchup is restrained from communicating ITV, Channel 4 and Channel 5 broadcasts to the public without owning a licence to do so, other than to the extent permitted under section 73 of the CDPA.
The judge also ruled to prohibit TVCatchup from making transient copies of films made by the broadcasters within the "buffers of [its] servers", unless the section 73 defence applies.
TVCatchup infringed the rights of the broadcasters by re-transmitting their content over mobile networks, he ruled.