The CJEU has held that TVCatchup's live streaming of UK free-to-view terrestrial television broadcasts infringes authors' rights to control communication to the public within the meaning of Article 3(1) Information Society Directive (2001/29/EC) (the Directive).
This decision confirms the right of originators to control over how, where and when their material is transmitted or re-transmitted, even where the recipients are legitimately allowed to receive the original broadcast. This puts control of transmission firmly in the hands of the original broadcaster and will be welcomed by originating media organisations in their fight against illicit streaming and other unlicensed services.
It points to this right being a powerful right to protect content and prevent unlicensed use of content by new online business models.
- The European Union legislature intended that each transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question.
The communication to the public right in Article 3(1) of the Directive covers:
- Retransmission by an organisation other than the original broadcaster;
- Internet streaming of the original broadcast made available to subscribers by logging on to the streamer's server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a normal television receiver.
- The authorisation, by authors, of the original transmission does not exhaust their rights in respect of any retransmission of that original transmission (under Article 3(3) of the Directive authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other or different communications of those works to the public).
- The method of funding the retransmission, here via advertising and therefore profit-making in nature, is not relevant to the assessment above, and neither is the fact that the retransmitting organisation is in competition with the broadcaster.
- The "public" communicated to here was indeed the "indeterminate" number of persons required by Article 3(1) of the Directive. The cumulative effect of making a work available to potential recipients must be taken into account and it was irrelevant whether the potential recipients accessed the communicate works through a one-to-one connection. The technique did not prevent a large number of persons having access to the same work at the same time.
- A "new" public is not a requirement for infringing communication where there is transmission using specific technical conditions, using a different means of transmission for the protected works.
The CJEU noted that the principal objective of the Information Society Directive was to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. "It follows that 'communication to the public' must be interpreted broadly" and this is expressly stated in Recital 23 in the preamble to the Directive and previously confirmed in the SGAE and FAPL cases.
TVCatchup had argued that they were not transmitting to a "new public" – something that appeared from the CJEU's conclusions in the SGAE, FAPL and Airfield cases, to be a requirement for a finding of illegitimate communication to the public. The transmissions were aimed at UK recipients who had an internet connection and who claimed to hold a television licence. Thus recipients of the TVCatchup service were already entitled to view the broadcasts through the normal channels on terrestrial television.
The CJEU stated that the situation in this case "differ[ed] clearly" from the situations at issue in these earlier cases:
"In those cases the Court examined situation in which an operator had made accessible, by its deliberate intervention, a broadcast containing protected works to a new public which was not considered by the authors concerned when they authorised the broadcast in question.
By contrast, the main proceedings in the present case concerned the transmission of works included in a terrestrial broadcast and the making available of those works over the internet."
This was use of "specific technical means" different to the original means of transmission of the protected works and was intended for a public. "In those circumstances it is no longer necessary to examine … the requirement that there must be a new public, which is relevant only in the situation on which the Court of Justice had to rule in the cases giving rise to the judgments in SGAE, Football Association Premier League (FAPL) and Airfield and Canaal Digital.
For infringement of the communication right, a public was needed, plus a transmission using different and unauthorised specific technical means. The public criterion was satisfied by the cumulative effect of the potential accessors of TVCatchup's service, whether or not they could have accessed it legitimately via terrestrial services.
Thus the rule to be applied would appear to be that each transmission or retransmission of that work using a specific technical means must, as a rule, be individually authorised by its author.
Further support for this is given under the Satellite Broadcasting Directive (93/98/EEC), fresh, individual authorisation is required for a simultaneous, unaltered and unabridged retransmission of a work by satellite, cable, or radio, even though those programmes may already be or have been received in their catchment area by other technical mean, such as by wireless means or terrestrial networks.
We await the return of this UK case to the High Court later this year before Mr Justice Floyd.