ITV Broadcasting Ltd & Ors v TVcatchup Ltd & Anor

A third party which retransmits a free-to-air broadcast may communicate the broadcast and works comprised in it to the public even where each subscriber could receive the original broadcast at home. The key question is whether the service is an independent exploitation, rather than merely technical support for reception in the original catchment area. Relevant factors include the service’s purpose, competition with the original broadcaster, advertising, profit and the cumulative audience reached. Separate one-to-one internet streams may be aggregated when assessing communication to the public. The court referred the issue to the CJEU because the existing authorities did not provide a sufficiently clear answer. It held that transient server-buffer copies lacked independent economic significance, but left the Article 5(1) defence dependent on the unresolved communication issue.

The claimants, commercial broadcasters, sued TVCatchup Limited for copyright infringement arising from its internet streaming of free-to-air television broadcasts and films included in those broadcasts. The alleged infringements concerned communication to the public and transient reproductions in servers and users’ devices. TVCatchup relied on the temporary-copy defence in section 28A of the Copyright, Designs and Patents Act 1988, and, for some channels, section 73.

Following an earlier judgment expressing provisional views, the court considered whether questions concerning communication to the public, substantial reproduction and the Article 5(1) defence should be referred to the CJEU. It also considered issues arising from the CJEU’s judgment in Football Association Premier League v QC Leisure. The central issue was whether internet retransmission to subscribers already entitled to receive the original broadcasts constituted communication to the public.

1. Reference. The court referred to the CJEU a question under Article 3.1 of Directive 2001/29/EC concerning whether a third-party internet streaming service communicates broadcasts and incorporated works to the public where subscribers could lawfully receive the original free-to-air broadcast at home. The question also addressed one-to-one connections, advertising and competition with the original broadcaster.
2. Communication to the public. The concept must be construed broadly and technologically neutrally. There is a distinction between an independent exploitation of the works and the provision of purely technical means supporting reception within the original catchment area. A service which supplies an alternative stream, operates for profit, attracts its own audience and competes for viewers or advertising is properly characterised as independent exploitation. The fact that users could receive the original broadcast directly does not necessarily prevent them forming a new public. The separate communications may be assessed cumulatively. (paras [32], [40], [42]–[54])
3. Reproduction. Applying the CJEU’s approach in Football Association Premier League v QC Leisure, the transient fragments held in TVC’s server buffers were sufficient to constitute reproduction of a substantial part of the films. Without the rolling-copy approach, reproduction of the films on viewers’ screens was not established. The court saw no sensible basis for applying a rolling approach to broadcasts when it was unavailable for films, so no reference was made on substantial reproduction of broadcasts. (paras [25]–[27])
4. Article 5(1) defence. Advertising revenue generated because transient copies were necessary to operate the streaming service did not give those copies independent economic significance. That significance had to be independent of the economic advantage derived from the lawful technological process itself. The defence nevertheless could not finally be resolved until it was known whether the use was lawful, which depended on communication to the public. (paras [28]–[31])
5. Section 73 and Marleasing. The court maintained its conclusion that section 73 could not be construed, consistently with the Marleasing principle, as confined to analogue channels. It considered the principle sufficiently clear and declined to refer questions seeking further guidance on its application. (paras [32]–[36])

First-instance judgment following an earlier judgment in the same action dated 18 July 2011. The court referred a question to the CJEU under Article 267 TFEU and deferred final determination of issues dependent on that ruling.