ITV Broadcasting Ltd and others v TVCatchup Ltd (in administration) and others (Secretary of State for Business, Innovation and Skills and another intervening) (the full judgment is available here).

Summary

In the latest twist to the real time streaming dispute between ITV and TVCatchup that began in 2011, the  Court of Appeal has decided to refer further questions to the CJEU on the scope of Article 9 of the InfoSoc Directive and whether it permits the UK to retain the defence contained in s.73 of the Copyright, Designs and Patents Act 1988 (the CDPA). The response to the reference will allow the Court to decide whether TV Catchup can legally provide real time streaming of free-to-air broadcasts over fixed line internet services in the UK.

Background

TVCatchup is an online service that allows internet users (who have signed up as members) to watch live UK television, including ITV broadcasts, on their own computers, smart phones and other devices.

The 2011 and 2013 Dispute

In 2011 ITV and a number of other broadcasters (referred to together as ITV) took legal action against TVCatchup for copyright infringement, arguing that its activities infringed its copyright in the broadcasts by communicating them to the public – a prohibited act in relation to copyright works under s.20 of the CDPA. The High Court referred a question to the Court of Justice of the European Union  (the CJEU) on whether internet streaming constituted a communication to the public under s.20.

In March 2013 the CJEU responded in the affirmative: streaming television broadcasts online without a broadcaster’s consent amounted to copyright infringement. Following this, the High Court declared that TVCatchup had infringed the copyright in ITV’s films and broadcasts and prohibited it from retransmitting live content in future. There was one exception: to the extent 

that TVCatchup had streamed ITV, Channel 4 or Channel 5 to members of the public by cable (including transmission via the internet but not transmission to mobile devices via any mobile telephone network) and to users situated in the region to which the original broadcasts were made, it had not infringed ITV’s copyright. This was because of the defence set out in s.73 of the CDPA, set out in full below, but in summary it allows “cable operators” to transmit broadcasters’ “public service channels” without having to obtain permission.

The judge did state, however, that s.73 was not compatible with Article 5(3) of the InfoSoc Directive (2001/29) (a European Directive designed to harmonise copyright laws within the EU and provide a high level of protection to authors) which permits:

“use [of copyright works] in certain other cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community, without prejudice to the other exceptions and limitations contained in this Article.” 

Court of Appeal Decision (2015)

The parties appealed against the judge’s findings in relation to the  scope of the s.73 defence and the case was referred to the  Court of Appeal. ITV argued that the s.73 defence did not extend to internet transmissions and was  restricted to transmissions on dedicated cable networks operated by conventional cable programme  providers. TVCatchup cross-appealed, arguing that the defence extended to a retransmission for  reception by mobile telephone.

In March of this year the Court dismissed TVCatchup’s appeal but decided that ITV’s appeal should  be stayed pending a further reference to the CJEU for a ruling on the scope of the InfoSoc Directive and whether it permits a member state to retain a provision such as s.73 of  the CDPA.

Intervening Parties

In 2014 the Secretary of State for Business, Innovation and Skills was permitted to intervene on the basis of the High Court’s declaration of incompatibility. Virgin Media Ltd was also given permission to intervene on the basis that it operated a national cable network providing retransmitted digital cable television services, relying upon s.73 to prevent its retransmissions from amounting to copyright infringement and thereby having a strong interest in the matter.

Conclusion

As the Court of Appeal has acknowledged, it is unfortunate that there will be further delay in the resolution of this action while the CJEU considers its response to this new reference. However, it is clear  that guidance is needed as to whether s.73 can be retained / whether its scope needs to be limited. The fact that the Secretary of State for BIS, as well as Virgin Media, have intervened in the action demonstrates the importance of this case to the broadcasting industry and consumers. Virgin Media has reportedly said that a significant part of its business  depends upon the outcome of the appeal.

The relevant section from s.73 CDPA is as follows:

“Reception and re-transmission of wireless broadcast by cable.

  1. This section applies where a wireless broadcast made from a place in the United Kingdom is received and immediately re-transmitted by cable.
  2. The copyright in the broadcast is not infringed—
    1. if the re-transmission by cable is in pursuance of a relevant requirement, or
    2. 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.
  3. The copyright in any work included in the broadcast is not infringed if and to the extent that the broadcast is made for reception in the area in  which it is re-transmitted by cable; but where the making of the broadcast was an infringement of the copyright  in the work, the fact that the  broadcast was re-transmitted by  cable shall be taken into account in assessing the damages for that infringement.”