In the previous instalment of this dispute, the UK Court of Appeal (CA) referred questions to the Court of Justice of the European Union (CJEU) on the meaning of the expression ‘access to cable of broadcasting services’ used in Article 9 of Directive 2001/29/EC (the InfoSoc Directive). The CA stated that Article 9, which it described as a “saving provision”, permitted Member States to maintain pre-existing provisions in their national copyright legislation notwithstanding the harmonisation objective pursued by the InfoSoc Directive (and the exhaustive list of exceptions set out in Article 5). The questions referred by the CA are now the subject of an Opinion from the Advocate General (AG), who makes it clear that, in his view, the exception for cable retransmissions set out in section 73 of the Copyright, Designs and Patents Act is entirely unrelated to the Article 9 ‘saving provision’. We expect the CJEU to agree, consigning the exception to history, defeating TVCatchup’s final defence and removing an obstacle to public service broadcasters claiming retransmission fees from other operators.
In the proceedings brought against TVCatchup (TVC) by ITV, Channel 4 and Five, the High Court decided that while TVC had infringed the broadcasters’ copyright by streaming the non-public service broadcast (non-PSB) channels, TVC could continue streaming the PSB channels as it was able to rely on a defence under section 73. The section provides a copyright exception in relation to the retransmission of PSB channels by ‘cable’. The High Court regarded the exception as broad enough to cover retransmission over the internet, although not retransmission to mobile devices. After hearing the appeals made by both sides against that decision, including interventions from the UK government and from Virgin Media, the CA referred to the CJEU the question of whether section 73 could be retained as an exception on the basis that it falls within the scope of Article 9.
Article 9 provides that the InfoSoc Directive “shall be without prejudice to provisions concerning in particular…access to cable of broadcasting services”.
The AG concluded that the reference to the CJEU was misguided. Article 9 of the InfoSoc Directive does not permit outright exclusions from harmonisation since such exclusions would cut across the rights established by Articles 2 to 4 of the InfoSoc Directive (on reproduction, communication and distribution rights). Article 9 is only concerned with maintaining provisions which are relevant to areas other than those harmonised by the InfoSoc Directive such as data protection and privacy, trademarks, confidentiality and patent rights. It follows that section 73, which provides for an exception to one of the core exclusive rights, the right of communication to the public (Article 3), cannot fall within Article 9. A contrary interpretation would frustrate the harmonisation objective pursued by this piece of European legislation.
The AG said that it is not possible to see how ‘access to cable’ could possibly translate to mean ‘retransmitting by cable’. The InfoSoc Directive already contains a provision dealing specifically with ‘cable retransmission’: Article 2(e). If Article 9 had intended to refer to cable retransmission, it would have done so. The words ‘access to cable’, the AG suggested, very likely refer to access between providers to cable networks within the context of the entirely separate pro-competition regimes established in the Access Directive (2002/19/EC) and Framework Directive (2002/21/EC) and are not to be construed as providing a defence against copyright infringement. Moreover, for completeness, the AG also observed that ‘cable’ is required to be given an autonomous meaning in EU law which, in the absence of an express definition in the InfoSoc Directive, must be interpreted by taking account of its context, of other documents in which it is used, and of the objectives pursued by those. He concluded that if the EU legislature had intended to adopt a broader, technologically neutral meaning (to include the internet), it would have chosen a more general concept, for example ‘wire’, or the legislation would at least have made clear that the concept of ‘cable’ included other technologies such as the internet. In the absence of that broader language being used or a qualified meaning given, ‘cable’ must refer to a traditional cable network operated by a conventional service provider.
While the CJEU is not bound to follow the AG’s opinion, his matter of fact, no nonsense dismissal of any suggestion that Article 9 allows for core copyright protections to be undermined through the back door indicates that the CA, and indeed the government, had run up a blind alley. We do not therefore expect the CJEU to be minded to disagree.
In the meantime, the fate of section 73 looks sealed: it is set to be abolished by the new Digital Economy Bill now before Parliament (see clause 28 of the Bill). We will see in time whether or not this paves the way for the payment of retransmission fees by cable operators to the public service broadcasters.