In its recent decision on the ITV v TVCatchup reference from the High Court of Justice, the Court of Justice of the European Union (the "CJEU") has ruled that live streaming by a third party of terrestrial television broadcasts would require the permission of the broadcaster, even if the third party's subscribers are within the area of reception of the terrestrial broadcast and can lawfully receive the broadcast on a television receiver. This is because the concept of "communication to the public" within the meaning of the Information Society Directive (2001/29/EC) includes the retransmission of copyright works included in a terrestrial television broadcast via a third party's website streaming.

Article 3(1) of the Information Society Directive requires EU member states to provide authors of copyright works with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means. This includes the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

The background to this case is that broadcasters including ITV alleged that TVCatchup had infringed the copyright in its broadcasts by communicating those broadcasts to the public through a process of electronic transmission. TVCatchup's website allowed subscribers to watch "live" streams of television broadcasts, which those subscribers were legally entitled to watch in the UK by virtue of their TV licences, on their computers, smart phones or games consoles.

The broadcasters brought proceedings for copyright infringement against TVCatchup and the High Court referred a number of questions to the CJEU for a preliminary ruling. The main questions were as follows:-

  1. Does the right of authors to authorise or prohibit a "communication to the public of their works by wire or wireless means" extend to the case where a third party provides a service whereby individual subscribers can stream the content of a terrestrial free-to-air television broadcast from the internet where the broadcast was originally intended for the area in which the individual subscribers could lawfully receive the broadcast?
  2. Does it make any difference if the third party's server only allows a "one to one" connection for each subscriber, if that third party's service is funded by advertising or if the third party is acting in direct competition with the original broadcaster?

The CJEU noted that it had to interpret the concept of communication to the public broadly rather than narrowly in line with the Information Society Directive's aim of ensuring a high level of protection for authors. The CJEU held that, by regulating the situations in which a given work is put to multiple use, the intention of the Information Society Directive is that each transmission or retransmission of a work which uses a specific technical means must be individually authorised by the author of the work in question. The CJEU noted that the making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication. The CJEU therefore held that "communication to the public" must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast where the retransmission is (i) made by an organisation other than the original broadcaster; (ii) by means of an internet stream made available to the subscribers of that other organisation; and (iii) even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.

The CJEU confirmed that its ruling was not influenced by the fact that a retransmission, such as that of TVCatchup, is funded by advertising and is therefore of a profit-making nature, or is made by an organisation which is in direct competition with the original broadcaster.

The ruling makes it clear that internet streaming services like those offered by TVCatchup are unlawful unless the third party has the broadcaster's consent even if the subscribers to the service can obtain access to content which they are legally entitled to watch in the UK by virtue of their TV licences.