Thursday 25 November 2010 may not be broadcasting – but it might be communicating

‘Communicating to the public’ may be becoming more fashionable judging by today’s decision in ITV v TVCatchup.

ITV, Channel 4 and Channel 5 are in the process of suing TV Catch Up Ltd for infringing their copyright by communicating their broadcasts to the public. streams more than 50 channels, making its money from the adverts that it places before programmes and around them as a frame. It’s name is a misnomer: it used to let you catch up by storing shows, but no longer – now it’s all live streaming. applied for summary judgment on the basis that it could not be defined as ‘communication to the public’ because it was not a ‘broadcast’. Section 20 CDPA (‘Infringement by communication to the public’) states that ‘communication to the public’ includes both (a) broadcasts and (b) making available to the public in such a way that they may access it at a place and time of their choice.

Both parties accept that doesn’t fit the definition of ‘broadcast’ in the CDPA, nor can viewers choose when they see the programmes. ‘So,’ the defendants said, ‘ isn’t communication to the public.’

But the judge said that though ‘communication to the public’ includes broadcasts and on-demand, it can include other things too. (Also, just because isn’t a ‘broadcast’ didn’t mean it can’t infringe copyright in a broadcast.)

Anyway, does anyone know why both parties agreed doesn’t fall within the definition of ‘broadcast’?


Thomas Dillon said...

I find it incredible that the defendant's lawyers thought they could get summary judgment on the basis that communication to the public is synonymous with "making available". A simple reading of the defintion in s. 20(2) would (and did) show the contrary. They were also seemingly infringing the reproduction right, but presumably it was easier for the broadcasters to rely on their copyright in the broadcasts.

Presumably the reason TVCatchup's transmissions were not "broadcasts" is s. 6(1A) of the 1988 Act, which appears to exclude them from the definition.

Jack B said...

The argument of it being "broadcast" or not, either positions TVCatchup as a "relay" of what is found in airwaves delivered as IPTV. Therefore just the technology in the middle, facilitating the broadcasters. (much like tv broadcast tower)

Broadcasting would position it and define it to be making available their content and that of ITV. Therefore infringement copyright.

Is it not?

Anonymous said...

Thanks, Thomas. I had wondered if might qualify as an internet transmission that takes place simultaneously on the internet and by other means - (1A)(a) - though I suppose s. 6(5A) means that tvcatchup is regarded as separate from the original broadcast, so there isn't ONE transmission taking place simultaneously online and elsewhere but TWO transmissions taking place simultaneously online and elsewhere.

I see a similar case is happening in the US: