TVCatchup Repeat: Court of Appeal Sends Referral to the ECJ

The Court of Appeal has decided to send a second reference to the Court of Justice of the European Union (CJEU) in order to rule on the defence in section 73 of the Copyright, Designs and Patents Act 1988(CDPA) and whether it is in line with Article 9 of the InfoSoc Directive.

Background

The defendant TV Catchup provide an internet television services for viewing free-to-air UK channels. It operates a cable service and users can access the service via desktop, smartphone and tablets. The users of the service need to subscribe to the service in order to receive broadcasts. The Claimants jointly brought proceedings for infringement of copyright in their broadcasts.

There are various acts which infringe copyright, including communicating a copyright work to the public (section 20, CDPA). The defences to copyright infringement in the Copyright Design and Patents Act (CDPA) include Section 73, which applies when a wireless broadcast made from within the UK is received and immediately re-transmitted by cable.

The case was appealed and referred to the Court of Justice of the European Union for a ruling on whether streaming constituted a "communication to the public". The CJEU's held that TV Catchup's streaming did involve a "communication" because it was an online re-transmission of a broadcast that was different to the original transmission.  The Court held the fact that individuals were each assigned their own stream was irrelevant. However, the court found TVCatchup had not infringed the claimants' copyright, by virtue of section 73 of the CDPA.

Court of Appeal Reference

The Claimants have argued that the Section 73 defence can only be relied upon if it is in line with Article 9 of the InfoSoc Directive. Article 9 of The InfoSec Directive was introduced to harmonise aspects of copyright across the EU. The Directive introduced an exclusive right of "communication to the public" by wire or wireless means.

The Court has decided to send a second reference to the ECJ on the issue of Section 73 defence to see if it is compatible with Article 9 of the InfoSoc Directive and covers streaming of public service broadcasts via the Internet.