Televisual “Communication To The Public” Stays Undefined: The Law Needs to “Catchup” with Technology

In ITV Broadcasting Ltd v TVCatchup Ltd [2011] EWHC 2977 (Pat), the High Court of England and Wales decided to maintain its reference to the Court of Justice of the European Union (CJEU) on the issue of “communication to the public”, however the reference on “reproduction of a substantial part” was no longer necessary.

BACKGROUND

TVCatchup operates a website that allows viewers to watch live streams of free-to-air-televisions channels. The Claimants (a number of broadcasters and TV content providers) allege that TVCatchup infringes their copyrights in films and broadcasts by reproduction and by communication to the public.

TVCatchup denied infringement and, alternatively, relied on the transient copying defence under Section 28A of the Copyright Designs and Patents Act 1988 (Article 5(1) of the Copyright Directive (2001/29/EC)) and the defence under Section 73 of the 1988 Act that permits cable retransmission of some broadcasts within their intended reception areas.

In July 2011, Mr Justice Floyd proposed references to the CJEU to determine whether live internet streaming of free-to-air TV channels is lawful. A further hearing was convened to consider the impact of the CJEU decisions in Joined Cases C-403/08 and C-429/08 Football Association Premier League Ltd v QC Leisure (FAPL) and in Joined Cases C-431/09 and C-432/09 Airfield NV v Sabam and Airfield NV v Agicoa Belgium (Airfield).

REFERENCES

The Claimants submitted that the decisions in FAPL and Airfield meant that a reference on the issue of “communication to the public” was no longer needed. Floyd J disagreed, stating that the CJEU’s decision in Airfield did not make it easy to distil a clear principle as to what amounts to communication to the public in this context. He therefore maintained the reference on this point.

In particular, Floyd J asked the CJEU to rule on whether, in the circumstances of there being available a free-to-air terrestrial broadcast in a given area, it amounts to communication to the public for a third party to provide the same broadcast by way of retransmission through the internet in the same area.

As for “reproduction of a substantial part”, Floyd J held that FAPL made it clear that the “rolling” approach to reproduction of Berne works was incorrect, and that the question must be asked in relation to “transient fragments”. Floyd J concluded that there was a reproduction of a substantial part of the films in the memory buffers of TVCatchup’s servers. He said that the segments of the films stored in the buffers must be sufficient to satisfy the tests as explained in FAPL. However, reproduction of the films on the screens was not established.

It therefore followed that Floyd J did not consider that this point warranted reference to the CJEU. Further, as regards broadcasts Floyd J said: “I do not see how it can be rational to apply the rolling basis to broadcasts when it does not apply to films”. Floyd J was further convinced of this fact given that: “If the Claimants fail on communication to the public the defence under Article 5(1) succeeds and there will be again no need to determine the point of law raised here”.

A further reference on the construction of Section 73 was also refused: this was a question for the national court.

COMMENT

In general, “communication to the public” has been given a rather wide interpretation by European case law. What is perhaps of most significance is that the communication has to be to a new public, i.e., not the public the broadcasters initially sent their broadcasts to. However, in this case, Floyd J was not persuaded either way: “It is not clear whether the audience reached by these broadcasts is an audience which is additional to the public targeted by the broadcasting organisation concerned”.

All of this is unsatisfactory for a number of reasons, not least because what is meant by the right of communication to the public now languishes somewhere between the ether and cyberspace while Floyd J’s reference wends its way to Luxembourg.