On 7 March 2013, the Court of Justice of the European Union (CJEU) ruled in ITV Broadcasting Ltd and others v TV Catchup Ltd  C‑607/11 EUECJ that live internet streaming of terrestrial TV broadcasts constitutes a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive. Without broadcaster permission, such retransmission may infringe broadcast copyright.
On 17 November, the High Court of England and Wales in ITV Broadcasting Ltd and others v TV Catchup Ltd  EWHC 1874 (Pat) requested a preliminary ruling from the CJEU concerning the interpretation of Article 3(1) of the Copyright Directive (the Directive).
TVCatchup Ltd (TVC) operates the website www.tvcatchup.com , which offers a free subscription service, enabling its subscribers to view live internet streams of free-toair UK terrestrial TV channels. The Claimants, a number of broadcasters that own copyright in their broadcasts, including ITV, Channel 4 and Channel 5, brought proceeding against TVC for copyright infringement. The Claimants alleged, inter alia, that TVC’s service constituted a “communication to the public” of their works and therefore required their consent.
Article 3(1) of the Directive (implemented into UK law by the Copyright and Related Rights Regulations 2003) confers on rights holders “the exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means […].”
The High Court requested the preliminary ruling in order to determine, inter alia:
- Whether or not the right conferred by Article 3(1) extends to third party organisations providing such services as TVC does, even where the subscribers can lawfully receive such broadcasts through television receivers; and
- Whether or not it makes a difference to question 1 if the third party is profit-making or is in direct competition with the relevant broadcaster.
In response to question 1, the CJEU ruled that the principal objective of the Directive is to establish a high level of protection for authors and, accordingly, “communication to the public” should be interpreted broadly. In particular, it held that Article 3(1) covers a retransmission of the works included in a terrestrial television broadcast by a third party, by means of an internet stream made available to subscribers, even though those subscribers may lawfully receive the broadcast on a television receiver.
In relation to question 2, the CJEU ruled that its interpretation of Article 3(1) was influenced neither by whether or not the third party, such as TVC, is profit-making, nor whether or not it was in direct competition with the broadcaster.
The CJEU’s ruling, which is consistent in conclusion with the High Court’s view, now means that live streaming services will require the consent of the relevant broadcasters. Whilst the High Court expressed the view that it considered whether or not the streaming service’s activities were “for profit” to be a determining factor, the CJEU has clarified that this is not the case.
This ruling is clearly very favourable to broadcasters and rights holders, many of which have disputed third party streaming services in recent years. It is unclear whether or not the numerous websites offering services similar to TVC’s will risk copyright infringement or seek to enter into content distribution agreements with broadcasters, which may result in a significant cost to the current business model. TVC, for its part, has indicated that it will dispute the CJEU’s view in the High Court.