On 7th March the Court of Justice of the European Union (the "CJEU") held in ITV Broadcasting Ltd and others v TV Catchup Ltdthat live streaming of third party broadcasts would require the permission of the broadcaster, as such retransmission amounted to a "communication to the public" within the meaning of the Information Society Directive.
Implications for live streaming
This ruling is significant as it provides further guidance on the concept of "communication to the public", and seems to be another step in the direction of affording greater protection for authors of copyright works through this right. The CJEU's decision appears clearly to indicate that streaming of third party broadcasts will require the permission of the broadcaster. Live streaming services, therefore, may not be able to continue to retransmit without paying licence fees to broadcasters. As a result of the CJEU's ruling, UK broadcasters now have the legal backing to challenge TV Catchup Ltd ("TVC"), or similar sites, from retransmitting their free-to-air content to its users.
The TVC service operates in such a way that each live stream is addressed to an individual user rather than a class of users, and users can only access content which they are already legally entitled to watch in the UK by virtue of their television licence.
Questions referred to the CJEU
In November 2011 the High Court referred certain questions to the CJEU seeking clarification on an author's ability to authorise or prohibit the retransmission of terrestrial free-to-air television broadcasts via an internet stream. The questions refererred were fundamentally as follows:
Does the right to authorise or prohibit a "communication to the public" extend to a case where:
- Authors authorise their works to be included in a terrestrial free-to-air television broadcast within a Member State; and
- A third party offers a service allowing its users, who could lawfully receive the broadcasts via their television sets, to receive the content of the broadcast by means of an internet stream?
Does it make any difference to the answer to the above question if:
- The third party allows only a “one-to-one” connection for each subscriber whereby each live stream is addressed to only one individual subscriber?
- The third party’s service is funded by advertising displayed while using the service, noting that the original advertisements contained within the broadcast are also presented unchanged?
- The third party is acting in direct competition with the original broadcaster for viewers or advertising revenues?
The CJEU's decision
The CJEU stated that the principal objective of the Information Society Directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. The CJEU said that it follows that "communication to the public" must be interpreted broadly.
- The CJEU held that the concept of "communication to the public" did cover TVC's retransmission of works included in a terrestrial television broadcast.
- It also confirmed that its ruling was not influenced by the fact that the retransmission in question: (i) is funded by advertising and is therefore of a profit-making nature, or (ii) is made by an organisation which is acting in direct competition with the original broadcaster. However, the CJEU commented that it was "not irrelevant" that a communication is of a profit-making nature.
Related case law
"Communication to the public" interpreted widely
In SGAE v Rafael Hoteles SL ("SGAE"), it was held that a hotel owner allowing guests to watch television broadcasts in their rooms effected a communication the public. SGAE established that limited subsections of the public can be considered to fall within the meaning of "public" for the purposes of the Information Society Directive and the "communication to the public" right. This broad interpretation of "communication to the public" was also supported in the CJEU's judgment in Football Association Premier League and Others ("FAPL") where a publican was held to make a communication to the public by showing works via television screens and speakers to customers in her pub.
In SGAE the CJEU suggested that "public" referred to an unspecified number of potential recipients, and implied a fairly large number of persons. In determining whether TVC's retransmission was to the "public", the CJEU considered (as in SGAE) that the cumulative effect of making the works available to potential recipients should be taken into account. Accordingly, the CJEU stated that it is particularly relevant to ascertain the number of persons who have access to the same work at the same time and successively, and that it is irrelevant whether the potential recipients accessed the communicated works through a one-to-one connection.
No need for "new" public
In Airfield and Canal Digitaal ("Airfield") the CJEU held that a satellite package provider, who was not the original broadcaster, may be required to obtain authorisation from the rights holders in order to make works available to the public. In Airfield (as well in SGAE and FAPL) it was necessary (and it was found) that there was communication to a "new" public - meaning to a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public.
In this case however, the CJEU stated that it was not necessary to examine the requirement that there must be a "new" public. The CJEU reasoned that such a requirement was relevant in the situations on which the CJEU had to rule in SGAE, FAPL and Airfield, but would not be relevant in this case. The CJEU stated that:
"In those cases, the Court examined situations in which an operator had made accessible, by its deliberate intervention, a broadcast containing protected works to a new public which was not considered by the authors concerned when they authorised the broadcast in question."
The CJEU considered that the present case concerned the transmission of works included in a terrestrial broadcast and the making available of those works over the internet. In that regard, the CJEU went on to state that:
"each of those two transmissions must be authorised individually and separately by the authors concerned given that each is made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for a public."
In other words, since transmission over the internet must be authorised individually, there is no need to establish that the communication was to a "new" public.