Court of Justice of European Union Rules in Favour of Rightholders with Regard to Live Streaming of TV Broadcasts
- 02/03/2017
- Articles
On 1 March 2017, the Court of Justice of the European Union (the “ECJ”) held in ITV Broadcasting and others v. TVCatchup Limited and others (C-275/15) that national legislation that allows users to receive, via cable or the Internet, live streams of free-to-air television broadcasts, is contrary to Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the “InfoSoc Directive”).
The preliminary ruling follows a referral to the ECJ by the Court of Appeal of England and Wales (the “Court of Appeal”) in a dispute between several commercial television broadcasters and TVCatchup (“TVC”), an internet television broadcasting service. In the case at hand, the television broadcasters sued TVC alleging copyright infringement as TVC granted access, via the Internet, to live streams of television broadcasts in which broadcasters hold copyright.
Following a first preliminary ruling of 7 March 2013 (ITV Broadcasting and Others (C-607/11)), in which the ECJ held that the online streaming of TV broadcasts is considered to amount to a communication to the public, the English High Court found that TVC had indeed infringed the broadcasters’ copyright. However, regarding three of the channels, it ruled that TVC could rely on a defence provided under the 1988 Copyright, Designs and Patents Act (the “CDPA”), which implemented the InfoSoc Directive into UK law. Article s73(2)(b) and (3) of the CDPA states that copyright is not breached “if and to the extent that the broadcast is made for reception in the area in which it is re-transmitted by cable and forms part of a qualifying service”. The English High Court estimated that these three channels formed part of a qualifying service, i.e., a public service.
In turn, the broadcasters appealed against this judgment to the Court of Appeal, which stayed the proceedings and referred several questions for a preliminary ruling to the ECJ. This is because the Court of Appeal had noted that Article 9 of the InfoSoc Directive clearly establishes that the Directive is without prejudice to provisions relating to access to cable of broadcasting services. In substance, the Court of Appeal thus asked whether national legislation such as Article s73(2)(b) and (3) of the CDPA should be permitted under Article 9 of the InfoSoc Directive.
The ECJ stated that the concept of 'access to cable', found in Article 9 of the InfoSoc Directive, should not be regarded as similar to the concept of ‘retransmission by cable’, laid down by Article s73 of the CDPA. In fact, in the context of the InfoSoc Directive, only the latter refers to the transmission of audio-visual content.
The ECJ highlighted that the principal objective of the InfoSoc Directive is to establish a high level of protection for authors by rewarding them with the appropriate remuneration. Hence, retransmission by cable, being a communication to the public, is always conditional on the authorisation of the relevant right holder. The only exceptions to the right to communication to the public are exhaustively listed in Article 5 of the InfoSoc Directive. According to the ECJ, the activities in the present case do not fall under the scope of Article 5 of the InfoSoc Directive.
The ECJ concluded that national legislation such as that at hand is in contradiction with the InfoSoc Directive, regardless of the public services character of the televisions channels at issue.
The UK Government intends to repeal the incompatible provisions of the CPDA. Nevertheless, the judgment is still significant inasmuch as it demonstrates the far-going harmonisation in the area of copyright law moulded by recent ECJ case law. In this regard, the ECJ seconded the Advocate General’s opinion that the rationale of Article 9 is "to maintain the provisions applicable in areas other than that harmonised by the directive” in order not to defeat the EU harmonising efforts.