The Court of Justice of the European Union Rules in ITV Broadcasting Ltd (and others) v TV Catchup Ltd.

In an important case that re-enforces the breadth of the basic rights of broadcasters and content owners to control the distribution of content by alternative technical means, the CJEU recently ruled that live internet streaming of a free-to-air television channel could infringe a broadcaster’s copyright, even though subscribers to the streaming service could have watched the broadcast on television legitimately and without payment.

Despite the fact that this CJEU’s decision was based on somewhat different factual scenarios than earlier decisions on similar issues, this judgment goes farther than those earlier decisions in focusing on whether the allegedly infringed retransmission was to a ‘new’ class of public – and whether a copyright had been infringed.

The case was referred to the CJEU on a specific point of law from principal proceedings in the English High Court.  In those proceedings, a number of free-to-air channel broadcasters sued TV Catchup, a web-based live streaming service, alleging that TV Catchup’ streaming service was an infringement of the content contained in the underlying broadcast.

Facing the question of whether the retransmission of a live TV broadcast over the internet would amount to a ‘communication to the public,’ Mr. Justice Floyd provisionally concluded that such a use would constitute an “intervention” (i.e., an independent exploitation of copyright), as opposed to an act that was merely supportive of the content — such as a technical means to improve reception of a broadcast signal.

The question decided was whether an author, who has authorized the inclusion of his work in a free-to-air TV broadcast, may prohibit the use of that work in a secondary streaming retransmission where individual subscribers could lawfully receive the original broadcast over the air – i.e., where there is no ‘new’ public.

The CJEU concluded that the right to control exploitation of a work by ‘communication to the public’ means that each transmission or retransmission of a work using a specific technical means must be individually authorised by the author of that work.  The court held, in essence, that rights holders have the right to control re-distribution of their content on different platforms.  In making this assessment the CJEU indicated that normally it will not be relevant to discern whether the purportedly infringing service is profit-making or in direct competition with the broadcaster.

The judgment reinforces the breadth of the basic rights of broadcasters and content owners to control the distribution of content by alternative technical means.  It supports the view that those rights are not exhausted by the initial authorisation of the broadcast of the work. 

This is a complex area and a range of considerations can come into play on particular facts.  However, in general terms, the judgment is likely to strengthen the hands of broadcasters and content owners in economic negotiations with other distribution platforms.