Internet retransmission of broadcasts a communication to the public, rules the CJEU

March 8th, 2013 by Barry Sookman Leave a reply »

The European Court of Justice ruled yesterday that retransmitting broadcasts over the internet infringes the communication to the public right, if done without authorization. The case involved TV Catchup Limited which operated an internet based live streaming service of broadcast television programmes.

The UK High Court in ITV Broadcasting Ltd & Ors v TV Catchup Ltd [2011] EWHC 1874 (Pat) (18 July 2011) referred the case to the EU Court of Justice (the CJEU). The case involved answering two questions. First, whether grabbing the over the air broadcasts and retransmitting them over the Internet was a communication. Secondly, whether the transmissions were “to the public”. The court in Case C‑607/11 found both requirements were met.

The transmissions were a communication because the right of communicating a work to the public extends to each new transmission or retransmission of a work which uses a specific technical means to deliver the broadcast to the public. The right is not exhausted by the original over the air transmission. According to the court:

In that connection, the Court notes that Directive 2001/29 does not define the concept of ‘communication’ exhaustively. Thus, the meaning and scope of that concept must be defined in the light of the context in which it occurs and also in the light of the objective referred to in paragraph 20 above.

It follows, in particular, from recital 23 in the preamble to Directive 2001/29 that the author’s 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, it is apparent from Article 3(3) of that directive that 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.

If follows that, by regulating the situations in which a given work is put to multiple use, the European Union legislature intended that each transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question.

Those findings are, moreover, supported by Articles 2 and 8 of Directive 93/83, which require fresh authorisation for a simultaneous, unaltered and unabridged retransmission by satellite or cable of an initial transmission of television or radio programmes containing protected works, even though those programmes may already be received in their catchment area by other technical means, such as by wireless means or terrestrial networks.

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 Article 3(1) of Directive 2001/29. Consequently, such a retransmission cannot be exempt from authorisation by the authors of the retransmitted works when these are communicated to the public.

The communications were also “to the public”. The programming was transitted to a public that comprised a large number of individuals. As found by our Supreme Court  in the Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 case, the overall aggregate dissemination can be taken into account even if the transmissions are sent through one to one connections.

In the second place, in order to be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a ‘public’.

In that connection, it follows from the case-law of the Court that the term ‘public’ in Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (see, to that effect, SGAE, paragraphs 37 and 38 and the case‑law cited).

As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. 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 (SGAE, paragraph 39).

In that context, it is irrelevant whether the potential recipients access the communicated works through a one-to-one connection. That technique does not prevent a large number of persons having access to the same work at the same time.

In the present case, it should be noted that the retransmission of the works over the internet at issue in the main proceedings 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 people may access the protected works at the same time, in the context of the ‘live streaming’ of television programmes on the internet.

Thus, the retransmission in question is aimed at an indeterminate number of potential recipients and implies a large number of persons. Consequently, it must be held that, by the retransmission in question, the protected works are indeed communicated to a ‘public’ within the meaning of Article 3(1) of Directive 2001/29.

The decision is consistent with Canadian law which also treats live Internet retransmissions of television programming as a communication to the public. As a result of the iCraveTV and JumpTV services, such retransmissions are expressly excluded from the retransmission regime in Section 31 of the Copyright Act.

TV Catchup’s service would also not likely have qualified as a a cable system entitled to a compulsory license under § 111 of the US Copyright Act under the WPIX, INC., v ivi INC. 2012 WL 3645304, (2nd.Cir.Aug. 27, 2012) case. Meanwhile litigation is ongoing in the U.S. over the legality of services such as Aereo which rent individuals mini digital antennas and remote DVRs to watch or record free television broadcasts. See, American Broadcasting Companies, Inc. v. Aereo, Inc., 2012 U.S. Dist. LEXIS 70749, (SDNY, 2012), Fox Television Studios v BarryDriller Content Systems, Case, No. CV-12-6921, (C.D.Cal. Dec 20, 2012).

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