ITV Broadcasting Ltd & Ors v TV Catch Up Ltd

Copyright in a broadcast is distinct from the restricted act of communicating that broadcast to the public. Section 20 of the Copyright Designs and Patents Act 1988 covers communication by electronic transmission and is not confined to broadcasting or making available on demand. In particular, the transmission used to communicate a broadcast need not itself satisfy the statutory definition of a broadcast. The statutory examples are inclusive, rather than exhaustive. A service may therefore communicate the content of a broadcast to the public even where its transmission is one-to-one and is not itself a broadcast.

The claimant broadcasters alleged that TV Catch Up Limited infringed copyright by transmitting their live television programming through an internet service. The defendant operated a website through which members could select and watch streams of the claimants’ channels.

The claimants applied for relief in proceedings concerning communication to the public under section 20 of the Copyright Designs and Patents Act 1988. The defendant sought summary judgment, arguing that its transmissions were not broadcasts within section 6 and therefore could not infringe copyright in a broadcast. The central issue was whether a transmission communicating a broadcast must itself be a broadcast.

1. The application for summary judgment was dismissed. The claim had a real prospect of success.
2. Article 3 of the Information Society Directive requires the right of communication to the public to be interpreted broadly. It covers communication to the public not present at the place where the communication originates, including but not limited to broadcasting and access on demand.
3. Section 20 of the Copyright Designs and Patents Act 1988 defines communication to the public as communication by electronic transmission. The references to broadcasting and making a work available on demand are examples introduced by the word “include”; they do not exhaust the provision’s scope.
4. The defendant’s argument confused the protected work with the restricted act. The protected work was the claimants’ broadcast, namely the transmission of images, sounds and other information for reception or presentation to the public. The restricted act was communicating those images, sounds and information to the public by electronic transmission.
5. There was no requirement that the communicating transmission itself possess the characteristics of a broadcast, such as transmission for simultaneous reception by members of the public. The analogy with sections 17 and 18 supported that conclusion: a copy of a broadcast need not itself be a broadcast and may be no more than a photograph under section 17(4).