Warner Music UK Ltd & Ors v Tunein Inc

An internet service may communicate works to the public even where it technically supplies hyperlinks to streams hosted elsewhere. The court must assess the alleged communication as a whole, considering the nature of the service, its intervention, the relevant public and territorial targeting.

Where the original communication was authorised, a later communication infringes if it reaches a new public or uses a new technical means. Where the original posting lacked consent, GS Media applies, including its rebuttable knowledge presumptions. A service integrating aggregation, curation, targeted presentation and recording functionality may go beyond conventional search-engine linking. The domestic time-shifting exception in section 70 of the Copyright, Designs and Patents Act 1988 remains limited to recordings made on domestic premises.

The claimants, owners or exclusive licensees of copyright in sound recordings, brought a test case concerning the TuneIn Radio website, applications and related services. TuneIn aggregated and presented links to internet-radio streams, including stations licensed in the UK, licensed only in other territories, unlicensed stations and premium stations created for TuneIn.

The issues included territorial targeting, communication to the public under section 20 of the Copyright, Designs and Patents Act 1988, the effect of the TuneIn Radio Pro recording function, user liability, authorisation, joint tortfeasance and safe-harbour defences. The court also considered whether individual users could rely on the statutory time-shifting exception.

1. Targeting. Targeting is assessed objectively from the perspective of the public in the relevant state, by evaluating all relevant circumstances. Mere accessibility is insufficient, but UK-targeted advertising, UK-specific categorisation, sterling pricing, UK partnerships and the presentation of streams to UK users established that TuneIn targeted the UK.
2. Communication to the public. The assessment is individualised and case-specific, but must be conducted holistically. TuneIn was materially different from a conventional search engine or ordinary hyperlinking service because it aggregated radio streams, curated and personalised access, presented content within its own service and maintained user access while streams played. It therefore communicated the relevant works to an indeterminate and fairly large public.
3. Categories 2, 3 and 4. Category 3 streams were treated as having been previously communicated under deemed consent limited to the local territory or service. TuneIn’s UK-targeted intervention reached a new public and infringed section 20. Category 2 streams were no better placed; alternatively, under GS Media, TuneIn was presumed to know that unconsented postings were unlawful and failed to rebut that presumption. Category 4 streams had no prior relevant communication and TuneIn’s provision of them directly infringed.
4. Category 1. UK-licensed stations had already been communicated to the relevant UK public. TuneIn’s activity did not reach a new public on these facts, so ordinary streaming through the service did not infringe.
5. Recording function. The integrated recording facility transformed the service into a permanent download-on-demand facility and constituted a new technical means. Its use infringed in Categories 1 to 4. Individual users who made recordings infringed under section 17, although some recordings might fall within section 70.
6. Section 70. The exception requires a recording of a broadcast made on domestic premises, for private and domestic use, solely to enable later listening or viewing at a more convenient time. The defendant bore the burden of proving the defence.
7. Secondary liability and safe harbours. TuneIn authorised, and was jointly liable for, the relevant infringements. The caching, hosting and mere-conduit safe harbours did not apply. The claim was therefore succeeded upon in the stated categories, while Category 1 streaming without the recording function was non-infringing.

This was a first-instance test case. The judgment explains that it followed an agreed retrial process after the previous trial judge was unable to produce a judgment. No lower-court judgment or appellate citation is stated.