Out-Law News | 02 Apr 2015 | 12:47 pm | 2 min. read
The Court of Appeal has said it will ask the Court of Justice of the EU (CJEU) to determine whether the defence, listed under the Copyright, Designs and Patents Act (CDPA), corresponds with EU copyright rules.
The precise questions to be posed to the CJEU have still to be set, but the Court of Appeal said it will postpone further consideration of a case before it until it receives the CJEU's ruling. The case involves a dispute between a number of UK broadcasters and online streaming service provider TVCatchup.
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 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. It states that the copyright rules set out in the Directive are "without prejudice to provisions concerning … access to cable of broadcasting services".
Under section 73 of the CDPA, however, there is 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.
The Court of Appeal said it is necessary to ask the CJEU to help it determine whether the UK carve out is permitted under the Information Society Directive.
If the carve out is permitted, then it "affords a defence both to an allegation of infringement of copyright in a broadcast and of the copyright in any work included in the broadcast 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 including transmission by mobile devices via any mobile telephone network) and/or to users situated in the original broadcast area", Lord Justice Kitchin said in the Court of Appeal's decision.
It is the second time the CJEU will be asked to provide guidance on the interpretation of copyright rules in the TVCatchup case. It previously gave a ruling which helped clarify whether retransmissions of TV broadcast content via an online stream to people in the same area for receiving the content via terrestrial TV constitutes a 'communication to the public' for the purposes of copyright laws.
The High Court in London acting after that CJEU judgment had been issued 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 High Court 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. It also said TVCatchup infringed the rights of the broadcasters by retransmitting their content over mobile networks.