A number of years ago my husband and I were walking on a beach somewhere in South East Asia. High up in the air I saw what looked like a long cord stretching from somewhere inland right out into the ocean. I couldn’t see where it began or ended. “What on earth….? ” I said. My husband replied patronisingly “It’s just a line of longitude”.
The UK case of ITV Broadcasting & Others v TV Catchup in which the CJUE gave a decision on March 7th involves an issue which reminds me of this. The question is how, for copyright purposes, to categorise live streaming of a broadcast signal. Is it re-broadcasting? Is it cable retransmission? Or is it something else entirely? And if the latter, by what rules is it governed? The CJEU decision brings some clarity to the issue in confirming that, irrespective of whether live streaming of a broadcast can be shoe-horned into a definition of either re-broadcasting or cable retransmission, it is unequivocally a “communication to the public” for which authorisation is needed from the right holders of works included in the live stream.
The facts were that TVC captures normal terrestrial and satellite digital broadcast signals of UK free-to-air programme material via a domestic TV aerial and a single satellite dish. It passes the signals along a chain of servers which prepare streams of video for sending over the internet. The servers can connect to a user’s computer via the internet. They can also connect to mobile devices. There is a mixture of wired and wireless activity involved. Software creates a separate stream for each user who requests a channel, and sends an individual packet on the occasion of each request.
TVC does not store copies of the broadcasts, although for technical reasons it holds a very small amount of data in the memory of the servers. It previously, but no longer, provides catchup television, being now exclusively a live streaming service.
When sued by ITV and other public broadcasters, TVC claimed that it was not reproducing protected material, nor was its activity a communication to the public for copyright purposes. It was merely providing the technical means to assist people to receive what they could already receive on their television sets, and for which they paid a television licence fee. It also claimed the benefit of a “reception area” defence. This is a copyright exemption for cable retransmission of the “must carry” channels in the region intended to be reached by the broadcast transmission. It is contained in S 73 of the UK Copyright Designs and Patents Act. There is a similar exemption in the Irish Copyright and Related Rights Act.
The UK court felt comfortable about dealing with the “reception area” defence. Floyd, J said “I see no reason why the cabling system in the internet should not be regarded as “cable” for the purposes of the Section 73 defence. So I reject the bald “internet is not cable” argument. However to take advantage of the section it seems to me that the whole of the transmission must be by cable….it is clear to me that the signal must reach its destination by cable for the defence to bite. Accordingly I would hold that TVC cannot take advantage of the defence where their retransmissions are for reception by mobile phone.” In addition, to the extent that TVC retransmitted services “out of area”, the defence would not apply.
The UK court was uncertain about whether the live stream constituted copyright infringement by being a “communication to the public”. It referred the question to the CJEU. The European Court has now held that where a retransmission by means of an internet stream is made by an organisation other than the original broadcaster, even to recipients within the area of reception of the broadcast who may receive the broadcast on a television receiver, there is a communication to the public involved.
The decision is very welcome, but the case certainly raises a question concerning the validity of the “reception area” defence in UK and Irish law. Originally intended to permit cable operators to retransmit in shadow areas of the national broadcasters’ transmission, it was not drafted with the internet in mind. It is clear from the decision of the UK court that the exception does not extend to streaming to mobile or “out of region” of the broadcast. However, even within region of the free-to-air- broadcast, in the light of the CJEU decision it is questionable whether it provides too much latitude….
ITV Broadcasting Ltd, ITV2 Ltd., ITV Digital Channels, Channel 4 Television Corporation, 4Ventures Ltd, Channel 5 Broadcasting Ltd and ITV Studios Ltd v TVCatchup Ltd. Case C-607/11
