The English Court of Appeal has sought a preliminary ruling from the Court of Justice of the European Union regarding a copyright defence covering retransmissions of live television broadcasts. The CJEU’s ruling on this point may have important implications for broadcasters and online streaming service providers throughout the EU and particularly in the UK and Ireland.

This is the second referral to the CJEU that has arisen from copyright infringement proceedings taken by ITV and other UK television broadcasters against TVCatchup, which offers online live streaming of certain UK television channels. Following the first referral the CJEU ruled that where there are copyright works included in a terrestrial TV broadcast, and those works are retransmitted by an organisation other than the original broadcaster, without its consent and via a different technical means (e.g., via the internet rather than as a terrestrial broadcast), then the retransmission will amount to an unauthorised “communication to the public” of those works.  Upon the return of these proceedings to the UK courts, TVCatchup sought to defend copyright infringement claims by, among other things, relying on a defence set out in section 73 of the UK Copyright Act. This covers the retransmission of a broadcast by cable in certain circumstances.  A similar defence is provided for in section 103 of the Irish Copyright Act.

TVCatchup argued that this defence covering the retransmission of broadcasts by cable in certain circumstances may apply to its internet streaming activities, since the term ‘cable’ is defined broadly in the UK Copyright Act. A question has arisen as to whether such an interpretation would be consistent with requirements under the InfoSoc Directive regarding rights and remedies for copyright holders that Member States must provide for in national copyright legislation. Article 9 of the InfoSoc Directive states that these requirements on Member States are without prejudice to national measures concerning various matters, including “access to cable of broadcasting services”. The Court of Appeal has decided that it requires a ruling from the CJEU as to how the word ‘cable’ should be interpreted in this context.  If ‘cable’ should be construed narrowly, so that it only covers cable television networks, then it may be necessary to give the defence in section 73 a very narrow interpretation to ensure that it is consistent with the InfoSoc Directive. If ‘cable’ is to  be given a broad interpretation, then the defence in section 73 could be construed to have a broader application which would be capable of covering, among other things, retransmissions of broadcasts via the internet.

The Court of Appeal seemed inclined to favour a broad interpretation of ‘cable’, however it acknowledged that a ruling by the CJEU was required to the clarify this point, particularly since it is important that there be a uniform approach to this issue throughout the EU. While the Court of Appeal has not yet formulated its questions to the CJEU, a ruling on this point might have major implications for television broadcasters and providers of internet streaming services, particularly if the CJEU were to adopt a narrow interpretation of ‘cable’ in this context.