ITV Broadcasting Ltd & Ors v TV Catchup Ltd

Section 2(2)(b) of the European Communities Act 1972 is a sui generis power. It permits secondary legislation closely and naturally related to implementing a directive, even where the measure is not strictly necessary and involves an original policy choice. Its scope depends on the statutory language and context, not an abstract formula.

A commercial internet service which intercepts broadcasts and retransmits them to attract an audience and advertising is, provisionally, a communication to the public. The reception-area defence in section 73 of the Copyright, Designs and Patents Act 1988 applies to qualifying services, but not to mobile-phone reception or out-of-area regional services.

The claimants, commercial broadcasters and programme rights owners, alleged that TV Catchup Limited infringed copyright by retransmitting live television streams over the internet and by creating transient copies in servers and users’ devices.

The defendant challenged the vires of the amendment introducing section 20(1)(c) of the Copyright, Designs and Patents Act 1988, disputed that its service communicated works to the public or reproduced substantial parts, relied on the temporary-copy exception in section 28A, and invoked the reception-area defence in section 73.

Floyd J held that the amendment was within the power conferred by section 2(2)(b) of the European Communities Act 1972. He made provisional findings on communication and reproduction, referred questions to the CJEU, deferred final judgment on issues affected by Football Association Premier League v QC Leisure, and determined the scope of the section 73 defence.

1. Vires. The amendment introducing section 20(1)(c) of the Copyright, Designs and Patents Act 1988 was validly made under section 2(2)(b) of the European Communities Act 1972. The subsection is not to be construed restrictively as a Henry VIII clause. It permits measures which are consistent with, and closely and naturally related to, the implementation of a directive, although not strictly required by it. A tenuous or merely general relationship is insufficient. The question must be determined by applying the statutory language to the circumstances.

2. Communication to the public. The court’s provisional view was that TV Catchup communicated the claimants’ films and broadcasts to the public. The service was an independent commercial exploitation, operated by an organisation other than the original broadcaster, competing for the broadcaster’s audience and advertising. The fact that users could receive the broadcasts directly, or that transmissions were initiated by users, did not prevent the communications being public. The court referred questions to the CJEU because the existing guidance did not conclusively resolve the issue.

3. Reproduction and temporary copies. The provisional view was that the buffers and screens contained substantial parts of the films, but not substantial parts of the broadcasts. Final judgment on the relevant issues was deferred pending the CJEU’s decision in Football Association Premier League v QC Leisure. If necessary, section 28A would be construed compatibly with Article 5(1) of the InfoSoc Directive so as to include broadcast copyright.

4. Section 73. The reception-area defence applied to qualifying services. “Cable” could include the cabling system inherent in the internet, but the whole transmission had to reach its destination by cable. The defence therefore did not apply to retransmissions intended for mobile-phone reception. It also did not apply where a regional service was retransmitted for reception outside its regional area.

5. The court directed that the form of order and the questions for reference should be settled after further submissions.