Tunein Inc v Warner Music UK Ltd & Anor

An online platform communicates copyright works to the public where it knowingly and materially intervenes to give a large body of users convenient access to streams which they would otherwise access only with difficulty. A foreign stream may become targeted at the UK through its incorporation into a UK-targeted platform.

Where the original communication was authorised only for a foreign audience, the UK audience may constitute a new public. Profit-making hyperlinks to unauthorised material attract a rebuttable presumption of knowledge under retained EU law. A recording function does not, however, turn an otherwise lawful stream into a communication by a new technical means or to a new public. The platform may still authorise, or participate in a common design for, unlawful reproductions made by users.

The respondents owned or exclusively licensed copyright in sound recordings. TuneIn operated a commercial website and apps through which UK users could search, browse and listen to about 70,000 music radio stations. TuneIn indexed and presented framed links to third-party streams, added advertising, metadata, categorisation, curation and personalisation, and formerly enabled users of its Pro app to record streams.

Birss J held in [2019] EWHC 2923 (Ch) that TuneIn infringed under section 20 of the Copyright, Designs and Patents Act 1988 in relation to unlicensed foreign stations, stations operating under foreign statutory schemes, and Premium stations. He also found infringement concerning licensed UK stations when the Pro app's recording function was enabled, and imposed accessory liability.

TuneIn appealed. The principal questions concerned targeting, communication to a new public, hyperlinking, departure from retained EU case law, and authorisation or joint tortfeasance arising from foreign streams and users' recordings.

1. Appeal allowed in one limited respect and otherwise dismissed. TuneIn was not liable for communication to the public concerning licensed UK stations merely because its Pro app included an enabled recording function. The judge's remaining material conclusions were upheld.

2. A communication of foreign radio streams was targeted at the UK. Targeting required an objective evaluation of all relevant circumstances from the perspective of the UK public. TuneIn did more than operate a conventional search engine. Its UK-directed platform aggregated, categorised, curated and personalised streams, displayed metadata, and supplied UK advertising. Its intervention caused the foreign streams presented to UK users to become targeted at the UK. The analysis did not depend on which sound recording happened to be playing at a particular moment.

3. TuneIn made an act of communication to a public. It intervened knowingly and in a highly material way to give an indeterminate and substantial body of UK users convenient access to protected streams which they would otherwise find more difficult to access. The cumulative elements of communication and public required an individualised assessment and could not be placed in watertight compartments.

4. Foreign stations operating under statutory remuneration schemes or consensual local licences communicated to their local audiences. Absent evidence of an extra-territorial licence, that authorisation did not extend to the materially different, UK-targeted communication made through TuneIn's platform. UK users therefore constituted a new public. TuneIn infringed in relation to category 3 stations and could be in no better position concerning unlicensed category 2 stations.

5. For profit-making hyperlinks to material placed online without the right holder's consent, the GS Media rebuttable presumption applied. TuneIn's warranties and checks were systemically inadequate. Many stations had supplied no warranty, other terms addressed only responsibility under local law, and TuneIn did not treat the warranties as important. It had therefore failed to rebut presumed knowledge.

6. The court declined to depart from retained CJEU jurisprudence. The domestic legislation and international treaty framework remained unchanged; harmonious interpretation was desirable; and departure would create uncertainty without resolving TuneIn's liability. The post-transition Grand Chamber judgment in VG Bild was not binding but was highly persuasive.

7. The recording function did not change the technical means used to communicate a stream, nor did it alter the public contemplated by the licence for a UK station. Users who recorded protected sound recordings could nevertheless infringe the reproduction right. TuneIn authorised those infringements because the integrated app purported to permit recording, TuneIn controlled the available stations and recording function, and infringement was inevitable.

8. Foreign stations could be primarily liable alongside TuneIn once their streams became targeted at the UK. TuneIn authorised infringements by foreign stations and was a joint tortfeasor where station operators consented to inclusion through forms or bespoke agreements. The requisite common design was that their streams should be supplied to TuneIn users, including UK users.

1. Court of Appeal (Civil Division): By [2021] EWCA Civ 441, allowed TuneIn's appeal only concerning communication to the public of category 1 stations through the Pro app with its recording function enabled. The appeal was otherwise dismissed.
2. High Court, Chancery Division: Birss J substantially upheld the copyright claims in [2019] EWHC 2923 (Ch), following a rehearing on the evidence and transcripts from an earlier trial before Henry Carr J.