In its recent case C-607/11, the Court of Justice of the European Union (“CJEU”) found that the online streaming of television broadcasts is “communication to the public” in accordance with Article 3(1) of the Information Society Directive (2001/29/EC). Consequently, offering a streaming service requires the consent of the owners of the copyright pertaining to the broadcasts.
The case relates to TVCatchup’s service that allowed its users to receive live streams of free-to-air television broadcasts in the UK. The service was limited to users who were geographically within the scope of the original broadcast, and who confirmed that they had a valid television license as required by the laws of the UK. TVCatchup purported that the service could not constitute “communication to the public”, inter alia due to the fact that it utilized a one-on-one connection model with its users, in which a signal was never sent to a group of users, whether determined in number or not. TVCatchup also alleged that the service was not, in fact, a retransmission of the original broadcast, but rather merely a technical means to improve its reception.
The CJEU, however, found that the determinative factor in the assessment of TVCatchup’s service is its de facto cumulative effect, and the technical means in which it was carried out should not be decisive. The Court also noted that the objective of the Information Society Directive is to provide a high level of protection to authors. Based on these grounds, the Court ruled that by providing the streaming service without consent, TVCatchup infringed the rights of the original broadcasters.