Claimant television broadcasting companies in main proceedings commencing proceedings against defendant television production company

ITV Broadcasting Ltd and other companies v TVCatchup Ltd: Court of Justice of the European Union (Fourth Chamber): 7 March 2013

Article 3(1) of Directive (EC) 2001/29 of the European Parliament and of the Council (on the harmonisation of certain aspects of copyright and related rights in the information society) provides: 'Member states shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them'.

The claimants in the main proceedings were commercial television broadcasters who owned copyright under national law in the television broadcasts themselves and in films and other items which were included in their broadcasts. They were funded by advertising carried in their broadcasts. The defendant broadcasting company, TVCatchup Ltd (TVC), offered an internet television broadcasting service which permitted its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts, including television broadcasts transmitted by the claimants in the main proceedings. TVC ensured that those using its service could obtain access only to content which they were already legally entitled to watch in the UK by virtue of their television licence.

The terms to which users had to agree therefore included the possession of a valid TV licence and a restriction of use of TVC services to the UK. The TVC website had the facility to authenticate the user’s location and to refuse access where the conditions imposed on users were not satisfied. The TVC service was funded by advertising. Audiovisual advertising was shown before the user was able to view the live stream. The advertisements already contained in the original broadcasts were left unchanged and sent to the user as part of the stream. There was also ‘in-skin’ advertising, which appeared on the user’s computer or other equipment.

For its activities, TVC used four groups of servers, namely, (i) acquisition, (ii) encoding, (iii) origin and (iv) edge servers. The input signals used by TVC were the normal terrestrial and satellite broadcast signals transmitted by the claimants in the main proceedings. The signals were captured via an aerial and then passed to the acquisition servers, which extracted individual video streams from the received signal without altering them. The encoding servers then converted the incoming streams into a different compression standard. The origin servers then prepared streams of video for sending over the internet in a variety of formats. Beyond that point, the channels offered by TVC were processed further only if at least one TVC subscriber had requested that channel. If there was no request for a given channel, the signal was discarded.

Edge servers connected with a user’s computer or mobile telephone using the internet. When an edge server received a request for a channel from a user, then, unless it was already streaming that channel to a different user, the edge server connected to the origin server which streamed that channel. The software on the edge server created a separate stream for each user who requested a channel through it. An individual packet of data leaving the edge server was thus addressed to an individual user, not to a class of users. The streams provided by the edge servers could be in a variety of different formats. The formats used were: Adobe Flash streams (for computers), HTTP streams (for Apple mobile devices) and RTSP streams (for Android and Blackberry mobile telephones).

The claimants in the main proceedings instituted proceedings against TVC before the Chancery Division of the High Court of Justice (England and Wales) (the referring court) for breach of their copyright in their broadcasts and films, alleging, inter alia, that there was a communication of the works to the public prohibited by section 20 of the Copyright, Designs and Patents Act 1988, in the version applicable to the facts in the main proceedings, and by article 3(1) of Directive (EC) 2001/29 of the European Parliament and of the Council (on the harmonisation of certain aspects of copyright and related rights in the information society) (the Directive).

The High Court took the view that it was not clear from previous judgments of the Courts of Justice of the European Union whether there was a ‘communication to the public’ within the meaning of article 3(1) of the Directive in the case where an organisation such as TVC, in full knowledge of the consequences of its acts and in order to attract an audience to its own transmissions and advertisements, streamed over the internet broadcasts to members of the public who would have been entitled to access the original broadcast signal using their own television sets or laptops in their own homes. In those circumstances, the referring court decided to stay the proceedings and to refer certain questions to the Court of Justice of the European Union (the court) for a preliminary ruling.

By Questions 1 and 2(a), the referring court asked, in essence, whether the concept of ‘communication to the public’, within the meaning of article 3(1) of the Directive, should be interpreted as meaning that it covered a retransmission of the works included in a terrestrial television broadcast: – where the retransmission was 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 might receive the retransmission by logging on to its server, – on the assumption that those subscribers were within the area of reception of the terrestrial television broadcast and might lawfully receive the broadcast on a television receiver. By Question 2(b), the referring court asked, in essence, whether the answer to Question 1 was influenced by the fact that a retransmission, such as that at issue in the main proceedings, was funded by advertising and was therefore of a profit-making nature. By Question 2(c), the referring court asked in, essence, whether the answer to Question 1 was influenced by the fact that a retransmission, such as that at issue in the main proceedings, was made by an organisation which was acting in direct competition with the original broadcaster.

The court ruled: (1) The concept of ‘communication to the public’, within the meaning of article 3(1) of the Directive, should be interpreted as meaning that it covered a retransmission of the works included in a terrestrial television broadcast – where 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 might receive that retransmission by logging on to its server, – even though those subscribers were within the area of reception of that terrestrial television broadcast and might lawfully receive the broadcast on a television receiver (see [40] of the judgment).

(2) In the light of the court's caselaw, it was not irrelevant that a ‘communication’ within the meaning of article 3(1) of the Directive was of a profit-making nature. However, a profit-making nature was not necessarily an essential condition for the existence of a communication to the public. Consequently, a profit-making nature did not determine conclusively whether a retransmission, such as that at issue in the main proceedings, was to be categorised as a ‘communication’ within the meaning of article 3(1) of the Directive (see [42], [43] of the judgment). The answer to Question 1 was not influenced by the fact that a retransmission, such as that at issue in the main proceedings, was funded by advertising and was therefore of a profit-making nature (see [44] of the judgment).

(3) It followed neither from the Directive nor from the case-law of the court that a competitive relationship between the organisations making real-time broadcasts of works protected by copyright or subsequent retransmissions of those works was relevant for the purpose of categorising a transmission as a ‘communication to the public’ within the meaning of article 3(1) of the Directive (see [46] of the judgment).

The answer to Question 1 was not influenced by the fact that a retransmission, such as that at issue in the main proceedings, was made by an organisation which was acting in direct competition with the original broadcaster (see [[47] of the judgment).