TVCatchup: landmark or mere technicality? Either way, we have a ruling

Today the Court of Justice of the European Union gave its ruling in Case C-607/11 ITV Broadcasting Ltd and Others v TVCatchup Ltd, on a reference for a preliminary ruling from the High Court, England and Wales. To be honest, there were plenty of tell-tale signs that this was not the most difficult or controversial case for the CJEU to process.  In the first place, the judgment is not a long one by copyright standards -- just 48 paragraphs inclusive of the recitations of law and the relevant facts. Secondly, the Court felt that it could manage quite well even without the benefit of an Opinion from the Advocate General.  Thirdly, the time taken from reference to ruling is a creditably speedy 15 months and a bit.

Readers who want more detail can click through to the full text of the decision, but many will get as much as they need or want from the Curia's helpful media release:

Television broadcasters may prohibit the retransmission of their programmes by

another company via the internet 

That retransmission constitutes, under certain conditions, ‘a communication to the public’ of works which must be authorised by their author 

EU law [Directive 2001/29 -- the InfoSoc Directive] seeks to establish a high level of protection for authors of works, allowing them to obtain an appropriate reward for the use of those works, including on the occasion of communication to the public. To that end, authors have an exclusive right to authorise or prohibit any communication of their works to the public. 

TVCatchup Ltd (‘TVC’) offers an internet television broadcasting service. This service permits its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts. TVC ensures that its subscribers can obtain access only to content which they are already legally entitled to watch in the United Kingdom by virtue of their television licence. The terms to which users must agree include the possession of a valid TV licence and a restriction of use of TVC services to the United Kingdom alone. The TVC website has the facility to authenticate the user’s location and thereby to refuse access where the conditions imposed on users are not satisfied. 

Several British commercial television broadcasters take exception to the distribution by TVC over the internet, substantially in real time, of their television broadcasts. They have for that reason brought proceedings against TVC before the High Court of Justice (England and Wales) (Chancery Division) for breach of their copyright in their broadcasts and films, alleging, inter alia, that there is a communication to the public which is prohibited both by national law and by Directive 2001/29. 

The High Court asks the Court of Justice whether there is a communication to the public, within the meaning of Directive 2001/29, in the case where an organisation such as TVC streams 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. 

First of all, the Court of Justice determines the meaning of the concept of communication’
and ascertains whether, in the present case, TVC’s activity comes within the scope of that concept. Directive 2001/29 states that the right of communication to the public covers any transmission or retransmission of a work to the public not present at the place where the communication originates, by wire or wireless means, including broadcasting. In addition, authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications of those works to the public. The Court accordingly finds that, when a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must, as a rule, be individually authorised by its author. 

Accordingly, given that the making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication, that retransmission must be considered to be a ‘communication’ within the meaning of Directive 2001/29. Such a retransmission cannot therefore be exempt from authorisation by the authors of the retransmitted works when these are communicated to the public. 

Second, the Court of Justice ascertains whether the protected works have in fact been
communicated to a ‘public’. According to the Court’s case-law, the term ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. The Court points out that the cumulative effect of making the works available to potential recipients should be taken into account and that, in that connection, it is in particular relevant to ascertain the number of persons who have access to the same work at the same time and successively. 

The Court finds that, in the present case, the retransmission of the works over the internet is aimed at all persons resident in the United Kingdom who have an internet connection and who claim to hold a television licence in that State. Those persons may access the protected works at the same time, in the context of the ‘live streaming’ of television programmes over the internet. Thus, that retransmission is aimed at an indeterminate number of potential recipients and implies a large number of persons. Consequently, the Court holds that, by the retransmission in question, the protected works are indeed communicated to a public within the meaning of Directive 2001/29. 

Accordingly, the Court answers that the concept of ‘communication to the public’, within the meaning of Directive 2001/29, must be interpreted as covering 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 may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.

The best thing about this decision is not so much the ruling which, in this blogger's opinion, was never seriously in doubt, but in the firm and decisive manner in which the CJEU expressed it. Rebecca Swindells (Field Fisher Waterhouse, quoted by Bloomberg), observed that it would have been a "real shock", had it gone the other way. Bruce Pilley, a director of London-based TV Catchup quoted by the same agency, did not sound too downcast, though: “Whatever the outcome of the ECJ, TVCatchup has already emerged as the clear victor from years of legal wrangling, and has established itself as the de facto online broadcast platform for Web, tablet, mobile and numerous other applications.” So far as The Inquirer was concerned, the decision turned on a mere technicality, that TV Catchup's services might be received by customers who were not holders of TV licences.  The Financial Times viewed the ruling not as a technicality but as a landmark, quoting Harbottle & Lewis's Tony Ballard: "For years, nobody has known whether the unauthorised retransmission of live TV on the internet infringes copyright. The court today . . . decided that it does.”