ITV Broadcasting Ltd & Ors v TVCatchup Ltd & Ors

A defence for immediate retransmission of qualifying public-service broadcasts by cable cannot protect a transmission to mobile telephones merely because an earlier part travels by cable. The transmission is assessed as a whole, and there is no general substantial-by-cable test, subject to the express treatment of microwave links between terrestrial fixed points.

The court provisionally considered that internet transmission could fall within the domestic concept of retransmission by cable. The compatibility of that interpretation with Article 9 of Directive 2001/29 was unclear. The broadcasters’ appeal was therefore stayed for a preliminary reference, while TVCatchup’s mobile-transmission appeal was dismissed.

The broadcasters alleged that TVCatchup’s internet streaming of their broadcasts and films infringed copyright. At trial, Floyd J held that the section 73 defence applied to retransmission by cable, including internet transmission and a domestic wi-fi final leg, where users were within the original broadcast area, but not to transmission for reception by mobile telephone.

After a reference to the Court of Justice and its decision in Case C-607/11, the High Court made consequential declarations. Both sides appealed. The central issues were whether “cable” in section 73 included internet transmission and whether the defence could apply where the final transmission was by a mobile telephone network.

1. Disposition. The appeal by TVCatchup was dismissed. The broadcasters’ appeal was stayed pending a preliminary reference to the Court of Justice under Article 267 TFEU.
2. Mobile transmission. The section 73 defence could not be applied only to the cabled portion of an end-to-end transmission to mobile telephone users. The transmissions began at TVCatchup’s servers and ended with individual users, and TVCatchup was responsible for them. They could not be divided into protected and unprotected parts. Section 73 provided no basis for a rule that retransmission was protected if it took place substantially by cable. Subject to section 73(13), the retransmission had to avoid wireless telegraphy. [91]-[95]
3. Domestic scope of section 73. Kitchin LJ, with Underhill LJ agreeing, provisionally concluded that the pre-2003 definitions of cable programme services were technology-neutral and broad enough to include TVCatchup’s internet service. The interactive-service exclusion did not apply to signals used merely to operate or control the service. The 2003 Regulations made consequential amendments and did not indicate an intention to narrow section 73. [37]-[42]; [68]-[70]; [74]; [98]
4. EU law and reference. The meaning of “access to cable of broadcasting services” in Article 9 of Directive 2001/29 was not clear. Kitchin LJ provisionally favoured an interpretation capable of preserving both the must-carry and reception-area exceptions. Underhill LJ provisionally considered the phrase narrower, while Arden LJ identified further questions concerning the meaning of cable in the EU acquis and the possible effect of conforming interpretation. Those differences made guidance from the Court of Justice necessary. [79]-[90]; [100]-[123]
5. Conforming interpretation. The Marleasing principle permits interpretation beyond purely domestic methods, but it remains interpretation and cannot cross the boundary into amendment of legislation. The final domestic question was left until the Court of Justice clarified Article 9. [86]; [99]-[101]

• Court of Appeal (Civil Division): TVCatchup’s appeal dismissed. The broadcasters’ appeal stayed pending a reference to the Court of Justice.
• Court of Justice of the European Union: answered the earlier reference in Case C-607/11 concerning communication to the public by internet retransmission.
• High Court, Chancery Division: Floyd J’s judgment of 18 July 2011, [2011] EWHC 1874 (Pat), held that section 73 covered same-area internet retransmission by cable but not retransmission for mobile telephones. A consequential order was made on 7 October 2013.