Warner Music UK Ltd v TuneIn Inc

The Court of Appeal considered whether TuneIn’s platform amounted to a communication to the public of sound recordings in the United Kingdom under section 20 of the Copyright, Designs and Patents Act 1988 (as amended to implement the Information Society Directive). The court held that TuneIn’s service targeted UK users and that, by presenting, framing and aggregating foreign internet radio streams for UK listeners, TuneIn caused those streams to be communicated to a UK public in respect of stations in categories 2, 3 and 4. The court applied and followed the CJEU jurisprudence (including Svensson, GS Media, Filmspeler, Pirate Bay, Renckhoff and VG Bild) on hyperlinking and “communication to the public”, including the GS Media presumption where linking is carried out for profit.

It was further held that TuneIn was liable in authorisation and as a joint tortfeasor for infringements by foreign stations and for UK users’ unauthorised reproductions made by the Pro app while the recording function was enabled. The single exception was that TuneIn’s appeal succeeded in part: TuneIn was not liable for a separate act of communication to the public in relation to category 1 (UK) stations merely by providing the Pro app with a recording function enabled; the judge had conflated reproduction issues with the communication right in that narrow respect.

The claimants, major owners and licensors of copyrights in sound recordings, sued TuneIn for UK copyright infringement. They alleged that TuneIn’s TuneIn Radio platform, which aggregates, categorises and frames links to over 100,000 internet radio stations worldwide and provides apps (including a Pro app with a recording feature until April 2017), had committed the restricted act of communication to the public in the United Kingdom, alternatively had authorised or was jointly liable for such acts by foreign internet radio stations. They also alleged authorisation or joint liability for reproductions made by users via the Pro app recording function.

The trial judge (Birss J) held largely for the claimants, finding infringement in relation to a sample of stations in categories 2 (unlicensed abroad), 3 (licensed abroad under statutory remuneration schemes) and 4 (TuneIn Premium stations), but not in relation to category 1 (UK-licensed) stations except insofar as the Pro app recording function had been used. TuneIn appealed.

The Court of Appeal (Master of the Rolls, Rose LJ and Arnold LJ) reviewed the international and EU-derived legislation (Berne Convention, Rome Convention, WIPO Treaties, Information Society Directive), CJEU case law on the concept of “communication to the public” and the domestic implementing provisions (section 20 CDPA). The court emphasised the territorial nature of copyright and that mere accessibility is not sufficient; an act must be targeted at the UK. The court accepted the judge’s factual findings about TuneIn’s operation (aggregation, curation, presentation, framing, UK-specific advertising and geo-targeting) and held that those activities targeted UK users and thereby targeted the foreign stations at the UK.

Issues framed by the court included (i) whether TuneIn’s acts amounted to a communication to the public in the UK, (ii) whether the foreign stations or TuneIn were the primary communicators, and (iii) whether TuneIn was liable by reason of authorisation or joint tortfeasance and for reproductions made via the Pro app. The court applied the CJEU’s multi-factor and fact-sensitive approach to communication to the public, including the GS Media presumption that profitable link providers are presumed to know of illegal posting unless rebutted.

Reasoning and outcome: the Court of Appeal concluded that (a) TuneIn’s presentation and framing of foreign streams to UK users targeted those streams at the UK and therefore constituted communications to the public for categories 2, 3 and 4; (b) TuneIn was liable in authorisation and as a joint tortfeasor for those communications; (c) users who recorded via the Pro app had committed reproductions and TuneIn authorised and was jointly liable for that functionality; and (d) the judge was wrong to treat the Pro app recording feature as a separate new technical means giving rise to an additional communication-to-the-public finding in respect of category 1 stations — that aspect of the appeal was allowed. The appellate court therefore dismissed the appeal save for the limited success on the category 1 / Pro app recording point.

Appeal allowed in part and dismissed in part. The Court of Appeal upheld Birss J’s primary conclusions that TuneIn’s platform targeted UK users and that, by aggregating, framing and providing access to foreign internet radio streams, TuneIn caused communications to the public in the UK in respect of category 2, 3 and 4 stations; TuneIn was liable by authorisation and as a joint tortfeasor and the GS Media presumption applied to profit-making linking. The court allowed TuneIn’s appeal only insofar as the judge had held that provision of the Pro app with an enabled recording function alone constituted a separate act of communication to the public in relation to category 1 stations (that finding was disallowed as conflating reproduction and communication rights).

Appeal from Birss J's re-heard trial judgment: Birss J [2019] EWHC 2923 (Ch). The matter had originally been tried before Henry Carr J, who died before delivering judgment; Birss J re-heard on the basis of prior transcripts and gave judgment on 1 November 2019.