On 7 March 2013 the European Court of Justice (ECJ) ruled in the TVCatchup case (C-607/11) that live streaming of television broadcasts constitutes a “communication to the public” pursuant to Article 3(1) of Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive).

TVCatchup is an internet based service that allows its users to receive live streams of television broadcasts on their computers and portable devices. TVCatchup may only be used by individuals who confirm that they already have a TV license and access the Internet from the UK. Several commercial television broadcasters located in the UK, however, were unhappy with that service and claimed that there was a copyright infringement since it would constitute an unauthorised communication to the public.

According to the ECJ, the purpose of the InfoSoc Directive is to establish a high level of protection. Therefore, the right to allow a “communication to the public” must be interpreted broadly. In this regard, retransmitting terrestrial television broadcasts over the Internet through specific technical means different from the original communication, must be considered such a “communication” which cannot be exempt from authorisation.

The ECJ then added that works must not only be “communicated”, but must also be to a “public”. In this respect, “public” refers to an indeterminate number of potential recipients and implies a fairly large number of persons. As a result thereof, it is particularly relevant to ascertain the number of persons who get access to the same work at the same time and successively. On the other hand, the fact that recipients would access the streamed works through a one-to-one connection is not relevant.  

As in the present case, the works were made available to all UK-based residents who had an internet connection and who claimed to hold a TV license, the retransmission was clearly aimed at an indeterminate number of potential recipients and, therefore, communicated to a “public”.  

Unlike its prior decisions rendered in the SGAE, Football association premier League and Others, and Airfield and Canal Digitaal cases, the ECJ holds that it is no longer relevant to know whether the retransmission was communicated to a new public.

The ECJ therefore concludes that the concept of “communication to the public” pursuant to Article 3(1) of the InfoSoc Directive covers a retransmission of the works included in a terrestrial television broadcast:  

  • If the retransmission is made by an organisation other than the original broadcaster;
  • By means of an internet stream made available to the subscribers of that other organisation who may receive that transmission by logging on to its server;  
  • Even though those subscribers are within the area of reception of that terrestrial television broadcast and may legally receive the broadcast on a television receiver.  

Finally, the ECJ added that the non-profit making nature may be taken into account to determine whether there is a communication to the public, although this would not necessarily be an essential precondition. On the other hand, the question whether the retransmission is broadcasted by a direct competitor is not relevant. (CL)  

The case can be found on http://curia.europa.eu/