The Court of Justice of the European Union (CJEU) has this morning confirmed that the online streaming of television broadcasts is a "communication to the public" under the Information Society Directive (Directive 2001/29) which requires the consent of the owner of the copyright in those broadcasts. This is so even where the service provider limits its streams to individuals who can lawfully receive the original television broadcasts.
The decision is a reminder that service providers cannot reuse third party content while simultaneously ignoring the owners of that content. It also creates an interesting new dimension to disputes involving similar technologies in the United States, as described below.
TVCatchup allows users to watch "live" streams of UK television broadcasts on their computers and mobile devices. Its services are limited to those who connect to the Internet from the UK and who confirm that they have a TV licence (without which TV cannot be watched in real time in the UK). Each subscriber receives their own stream from TVCatchup.
A number of UK broadcasters, including ITV, Channel 4 and Channel 5, sued TVCatchup for copyright infringement, alleging that the service infringed their exclusive right to authorise a "communication to the public" of their broadcasts. TVCatchup argued that their service was not a "communication" relying on CJEU cases including SGAE Case C-306/05 and FAPL Joined Cases C-403/08 and C-429/08 (which we covered here) which have previously indicated that mere "technical means to ensure or improve reception of terrestrial television broadcast to its catchment area" did not constitute a communication. It also argued that any communication was not to the "public" since, again relying on cases such as FAPL, there was no "new" public over and above the public originally contemplated by the rights owners.
In its decision today, the CJEU has held that the TVCatchup service was indeed a communication of the claimants' works and that such communication was to the "public", essentially mirroring Floyd J's provisional views in the English High Court judgment referring the matter to the CJEU (ITV Broadcasting Ltd & Ors v. TVCatchup Limited  EWHC 1874 (Pat)).
The Court reiterated that the principal objective of the Information Society Directive is to establish a high level of protection of authors and that the phrase "communication to the public" must be interpreted broadly. This means that each transmission or retransmission of a work which uses a specific technical means must be individually authorised by the owner of the work in question.
The Court held that TVCatchup did involve a "communication" because it was an online re-transmission of a terrestrial broadcast that was different to the original transmission. That made it, effectively, a new transmission and not a mere "technical means to ensure or improve reception of " the broadcast.
To the Public
The Court reiterated that the term "public" refers to "an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons". That public can be determined, however, by looking at the number of users who can access the service successively, as well as simultaneously. On that basis, the fact that individual subscribers to the TVCatchup service were each assigned their own stream was irrelevant: the Court has looked at the substance, rather than the form, of the service.
The Court also held that there is no independent requirement that the communication be to a "new" public. It had identified such a requirement in FAPL and SGAE, but decided in this case that "the requirement that there must be a new public … is relevant only to the situations on which the Court of Justice had to rule in [FAPL and SGAE]".
Online service providers reusing copyright works without the express permission of the copyright owners have suffered a significant setback as a result of today's ruling. The decision does not mean the end of their technology, however. It only means that they cannot exclude the owners of the content upon which they depend from the commercialisation of their innovation. That is absolutely fair, and to be expected.
Initial reaction to the ruling has suggested that the Court might have dispensed with the need for a "new public" in retransmission cases. That view does not appear to be correct, although it might be said that the concept of a "new public" is certainly now less important than originally thought.
In the "new public" cases of FAPL and SGAE, the CJEU now says that it was only addressing the supply of unchanged transmissions to new locations; in TVCatchup, the Court is addressing the supply of new transmissions to unchanged locations. What the Court really appears to be saying, therefore, is that the copyright owner's exclusive rights in "communications to the public" allow it to control both the method of transmission and the locations to which it is sent. As long as one of those two is "new", the copyright owner's consent is required.
The case also provides an interesting perspective on the contrasting fortunes of very similar streaming services in the United States, where Aereo's streaming service has been allowed to continue to operate in New York, whereas a federal court in California has held that the (unrelated) Aereokiller must cease its streaming service. With a conflict between the Second and Ninth Circuits appearing inevitable as a result of any appeals, it is possible that the US Supreme Court will eventually decide on the legality of such streaming services in the US. Today's decision in TVCatchup suggests that Aereo might be the anomaly in this growing area of jurisprudence, but how the Supreme Court rules in any appeals could have a significant impact on where new streaming technologies can secure the most funding.
The CJEU's decision in ITV Broadcasting Ltd v TVCatchup Case C-607/11 can be read in full here.