Many of us have the kind of social schedule which interferes with our passion for Ricky Martin and The Voice.  Of course, there are a plethora of options which now help us catch up on our favourite (missed) shows.

The world of television is changing.  No longer independently located in your living room, television is increasingly linked to the internet.  The right to make television content available online is valuable.  People are willing to pay to have live or delayed television streamed to their devices.  This content can also be a valuable source of advertising revenue.

So it is hardly surprising that internationally, there has been a recent flurry of copyright infringement cases about the streaming of free-to-air television programs over the internet.  Here’s a common scenario:

  • Company X owns copyright in a television program.
  • Company X licenses those rights to various networks or telecommunications carriers, sliced and diced as it sees fit (eg online rights might be differentiated from free to air).
  • Network Y then broadcasts the program, making money via advertising and / or subscriptions.
  • Along comes New Technology Guru which captures (a nice word for ‘copies’), say, the free to air TV broadcast, and then streams it (often on a delayed basis) to subscribers of their service.
  • New Technology Guru also makes money via advertising and / or subscriptions.
  • Company X and Network Y are unhappy because their rights deal (and the bargain struck for that deal) is undermined.  They decide: “Let’s litigate!”

Let’s take a short trip around the world and see whether the technology avoided copyright infringement, or not, having regard to:  Aero (US); TV Catchup (UK) and TV Now (Australia).

The technology

We should start with some background about the relevant New Technology Gurus.

The services had in common the objective of individualising the streaming of the content and/or its receipt by subscribers.  There were also geographic limitations imposed; if you didn’t reside in an area capable of receiving the original broadcast, you could not receive the program.

Here’s some more detail about how the services at issue worked:

  • Aereo provides subscribers with live and recorded television to mobiles, computer and tablets for a monthly fee.  The Aereo infrastructure includes a tiny antenna for every single subscriber.  Aero makes individual copies of programs for Aereo users, using the transmission received on their individual antennae.  Subscribers can also watch a program live.  In this way, Aereo says that each subscriber is receiving their own “private” transmission.
  • TV Catchup allowed members to watch live free-to-air television on their computers, iPhones and games consoles.  On the TV Catchup website, members selected a channel and received a flash stream of all the programming on that channel.  There was a slight delay, because TV Catchup first showed an advertisement.  The TV Catchup server streamed the live programming to the user.  A separate stream was created for each user and each packet of data sent from the server was addressed to an individual user.
  • TV Now enabled a subscriber to select and have free to air television programs recorded as and when broadcast by the TV station.  The programs could then be played back at the time (or times) of the subscriber’s choosing on the subscriber’s mobile device or computer.  The programs could be played near-to-live or delayed.  The TV Now server copied and recorded a TV program if it had been selected by a subscriber.  Four copies (in different formats) were made for each subscriber who requested the program.  Only a user who had selected to record a TV program could request for it to be played back, at a time of the subscriber’s own choosing.

In this post, we’ll focus on whether or not these methods could be regarded as a “communication to the public”, or in the case of the US, whether there was a “public performance” of the work.  If you’re interested in more information about other questions that could be tested, such as: temporary copies on buffers, multiple copies, and the application of the test of ‘substantial part’, let us know and we’ll oblige.

The Aereo decisions

Does Aereo involve public performance?  Well, it depends whether you are in New York or in California!  The majority of the Second Circuit Court of Appeals in Aereo (decision here) said that there was not a public performance.  The US District Court for the Central District of California (in the Ninth Circuit) said that there was a public performance.

In deciding that Aereo did not involve a public performance, the majority of the Second Circuit Court of Appeals followed an earlier decision of the same court in Cablevision.  The Court said that they should look at the potential audience for a transmission, not the potential audience of the underlying work.  Looking at the technology, the majority said that since there was only ever one person who would receive the transmission, this could not be “the public”.  You couldn’t aggregate multiple transmissions of unique copies of the same work to say that there was a transmission to the public.  The Court said that the Aereo system had been designed to avoid copyright liability and that it was not the first to do so.  Judge Chin strongly dissented.

On the other hand, the US District Court for the Central District of California found that the Aerokiller service (relevantly similar to Aereo) was a public performance of a work.  The Court said that it did not have to follow Cablevision, as its precedent was not the same as the precedent in the Second Circuit  The Court said the Second Circuit’s focus on unique copies from which a transmission was sent was wrong.

The Aereo case is full of twists.  On 6 May 2012, Aereo filed a new case in the Second Circuit, seeking a declaratory judgment that the service doesn’t infringe copyright across all other US States.

The TV Catchup decision

What about the UK?  Was TV Catchup a communication to the public?  In short, yes.  The Court of Justice of the European Union (CJEU) (decision is available here) said that the transmission in question must have communicated the protected works to the public.

The CJEU said that the intervention by TV Catchup was different to that of the broadcasting organisations.  It was not just a technical means to maintain or improve the quality of transmission (which would have been an exception).  Here, there was a different means of transmission and it was irrelevant whether there was a one-to-one connection between subscribers and the service.  The technology used by TV Catchup did not prevent a large number of persons having access to the same work at the same time, which was a communication to the “public”.  It was not relevant to the question of whether something was a “communication to the public” whether TV Catchup was a profit-making venture or whether it was in direct competition with the TV stations.

TV Catchup was a case that had been referred to the by the UK High Court.  The CJEU answered questions of law on “communication to the public” for the High Court, so the case will now go back to the UK.

The TV Now decision

Did TV Now involve a communication to the public?  In short, this was not decided.

The main focus of the Full Federal Court decision was on the question of who was the “maker” of copies of the program selected by the subscriber (found to be Optus, or Optus and the subscriber).  The fact that copies were only made following a user request did result in the conclusion, in all the circumstances, that Optus itself did not make the copy.  The Full Court also found that Optus did not fit within the time-shifting exception, which applied to private copying by individuals.  (The Full Court decision is available here and the primary judge’s decision is available here.)  While an application was made to appeal the Full Court’s decision, the High Court refused special leave.

Sadly for lovers of copyright law (and for the purpose of this blog post), the Full Court did not delve into the question of whether there had been a “communication to the public”, stating that its reasons were sufficient to resolve the appeal.  The primary judge had concluded that the user was responsible for any communication to his or her device and that it was not a communication to the public.  Although the decision of the primary judge was not directly overturned on this aspect, the primary judge linked the conclusion on “communication to the public” with his Honour’s earlier finding (which was overturned) that it was the user, not Optus, that made the copy (see eg at [95] and at [105]).

Conclusion

It is definitely interesting to compare these four decisions and the technologies.  Why do they seem so different?  Of course, the copyright law that applied to each decision is not the same.  But we can make some very general observations:

  • What is being transmitted/communicated?  The Californian Court and the CJEU looked at the underlying work, whereas the Second Circuit focused on the individual copies of the underlying work.
  • Who is the “public”?  The Second Circuit looked at the audience of each single transmission, whereas the Californian Court aggregated the transmissions.  The CJEU agreed that whether there was a one-on-one transmission was irrelevant.
  • Cablevision – good or bad law?  The Second Circuit certainly likes it, but the Ninth Circuit doesn’t.  The Full Court of the Federal Court didn’t follow Cablevision.  It noted the division between the US Circuits and the importance of the concept of “volitional conduct” in Cablevision, which would be a “gloss” on the Australian statute.

The tension between developments in technology and the rights of copyright holders has frequently been discussed in copyright law, all the way from the printing press, through to the VCR and to the new internet-based technologies.  The internet streaming of free-to-air broadcasts is one of the latest battlegrounds of copyright law and we are sure to see many more interesting decisions and policy debate in this area.