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Online retransmission of TV programmes protected by copyright, rules CJEU

Out-Law News | 08 Mar 2013 | 9:18 am | 4 min. read

Original broadcasters of terrestrial television programmes have the right to prevent others from retransmitting the content they screen to an online audience, the Court of Justice of the European Union (CJEU) has ruled.

The EU's highest court said that organisations wishing to offer streaming services to users to allow them to view broadcasters' programmes online need the permission of rights holders to do so. This is because those online retransmissions are delivered using "specific technical means different from that of the original communication," it said.

EU copyright law gives rights holders the right to prohibit such retransmissions, the CJEU said. That is because technically different retransmissions constitute a "communication to the public" and require the authorisation of rights holders, it said.

"The concept of ‘communication to the public’, within the meaning of [EU copyright laws] must be interpreted as meaning that it 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," the CJEU ruled.

The Court said that its findings stand regardless of whether or not retransmissions are made in a commercial context or whether they are made in direct competition or otherwise with original broadcasters' offerings.

The CJEU's ruling was made in response to a request for legal guidance from the UK's High Court on a case before it involving a number of UK broadcasters.

In 2011 judge Mr Justice Floyd said that said it was his "provisional opinion" that a streaming service operated by TVCatchup constituted a communication to the public, but that he would ask the CJEU to clarify the matter.

TVCatchup.com relays free-to-air TV channels to computers and mobile devices. Broadcasters ITV, Channel 4 and Five claim that it uses material they have the rights to without permission.

UK copyright laws state that communicating to the public is an act restricted by copyright in certain circumstances.

The Copyright, Design and Patents Act states that 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", the Directive states.

In its ruling on Thursday the CJEU rejected TVCatchup's claim that making broadcasters' programmes available to view online was "merely a technical means to ensure or improve reception of the terrestrial television broadcast in its catchment area". Retransmission for that purpose would not have required rights holders' permission, the CJEU said, but it said that TVCatchup's service "is in no way intended to maintain or improve the quality" of what broadcasters are transmitting.

The CJEU said that even if retransmissions of programmes were facilitated on a one-to-one basis, that would still constitute a communication to the public where multiple people could still view the material at the same time as one another.

"In the [case of TVCatchup], it should be noted that the retransmission of the works over the internet ... is aimed at all persons resident in the United Kingdom who have an internet connection and who claim to hold a television licence in that State," the CJEU said. "Those people may access the protected works at the same time, in the context of the ‘live streaming’ of television programmes on the internet."

"Thus, the retransmission in question is aimed at an indeterminate number of potential recipients and implies a large number of persons. Consequently, it must be held that, by the retransmission in question, the protected works are indeed communicated to a ‘public’ within the meaning of [EU copyright laws]."

In a statement ITV, Channel 4 and Channel 5 said they welcomed the CJEU's findings.

"The judgment makes it clear that, subject to some limited defences, broadcasters and content producers should be able to prevent unauthorised streaming of free to air channels," the broadcasters said. "We now look forward to the UK court's implementation of this judgment. We reserve the right to pursue any site or service we believe to be infringing our copyright or using our content in an unlicensed, illegal capacity."

TVCatchup did not respond to Out-Law.com's request for a comment. However, the company said it would continue to fight its case for the right to relay the ITV, Channel 4 and Channel 5 content via its service, according to a report by Digital Spy. TVCatchup said that the terms of the public service broadcaster (PSB) licenses awarded to the three broadcasters meant that it could legitimately relay their programmes.

"If these PSB broadcasters argue that their channels do not form part of the qualifying cable services that TVCatchup is allowed to rebroadcast, then their inclusion in pay access platforms such as Virgin Media and BT Vision would be in direct contravention of their PSB obligations," TVCatchup said. "Thus, whatever the outcome of the [CJEU's judgment], TVCatchup has already emerged as the clear victor from years of legal wrangling, and has established itself as the de facto online broadcast platform for web, tablet, mobile and numerous other applications."

"TVC is here to stay; we are not thinly disguised purveyors of filth, we remain Europe's first and only legal internet cable service and the [CJEU's] opinion affects only a handful of channels we carry," it added.

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