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Euro beaks to rule if TVCatchup.com is legal

Is free-to-air free as air? Or not

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The UK High Court is to ask the European Court of Justice (ECJ) if streaming live TV programmes over the internet is an act subject to copyright laws after provisionally ruling that it is.

Mr Justice Floyd said that TVCatchup did communicate to the public when it streamed programmes broadcast by ITV, Channel 4 and Channel Five to internet users. The judge said he would ask the ECJ to consider whether he is right.

TVCatchup.com relays free-to-air TV channels to computers and smartphones. Broadcasters ITV, Channel 4 and Five claim that it uses material they have the rights to without permission.

UK copyright laws state that communicating to the public is an act restricted by copyright in certain circumstances.

The Copyright, Design and Patents Act states that copyrighted material is communicated to the public unlawfully if a broadcast or film is made available to the public via an "electronic transmission" in a broadcast that is accessible by the public "from a place and at a time individually chosen by them".

That section of the Act was introduced by The Copyright and Related Rights Regulations in 2003 to implement the EU's Information Society Directive.

The Directive states that broadcasters' copyright rights apply broadly to all communications to the public not made by the rights-holding broadcaster. This right "should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting", the Directive states.

Mr Justice Floyd said it was his "provisional opinion" that TVCatchup's streaming service constituted a communication to the public.

"In my provisional view, the acts of TVCatchup in intercepting the [broadcasters'] broadcasts (and works comprised therein) and making them available via the internet amount to acts of communication to the public," the judge said in his ruling.

"TVCatchup's intervention is plainly by an organisation other than the original broadcaster. It is, [on the face of it], a 'communication to the public'. It is necessary to see whether it can be brought within the limitations on that term," the judge said.

The judge said that it would ask the ECJ to consider whether TVCatchup's streaming service was indeed a communication to the public. He said the ECJ had to consider whether the service attracted a "new public" who would not otherwise watch the programmes directly through the broadcasters and whether that was significant in determining whether its streaming of programmes constituted unlawful activity.

"I consider that the principles which it is possible to extract from [previous case law] do not go far enough to enable me to answer that question conclusively in the [broadcasters'] favour," Mr Justice Floyd said in his ruling.

"I propose therefore to refer a question for the opinion of the Court of Justice on this point," the judge said.

TVCatchup said that it only provided the "technical means" to the public to access copyrighted content and had therefore not communicated the material to the public, but Mr Justice Floyd said he disagreed.

"TVCatchup do not in my judgment merely provide technical means to ensure or improve reception in the catchment area of the broadcast," the judge said.

"The service ... is an alternative service to that of the original broadcaster, including its own advertising content, and which is in competition with the service provided by the original broadcaster. It is operated for profit. It is intended to attract its own public audience," the judge said.

"Its activities are therefore, in my view, an independent exploitation of the works and other subject matter. They are not merely supportive of the original exploitation of the work," the judge said.

Mr Justice Floyd rejected TVCatchup's view that its streaming service was just a number of private communications between the service it offered and its audience. The company had argued these private communications, even when considered as a whole, did not constitute a "communication to the public".

TVCatchup also claimed it was not responsible for controlling the equipment the audience uses to access the signal to the content it streams, but Mr Justice Floyd said that it was not relevant as any offence would be in distributing the signal itself which TVCatchup did, he said.

TVCatchup also relays films on its streaming service. The broadcasters claim that the company violates copyrights by communicating the films to the public but the firm argued that it only made temporary copies of the films which was a lawful use of the material.

Under UK copyright laws temporary copies are not unlawful if they are "transient or incidental" to the whole works and are made in order to ensure the programme is technically broadcast with "no independent significance".

TVCatchup stores some video when it streams content to viewers. This amounts to approximately 30 to 40 seconds worth of material when the material is streamed via Apple devices, Mr Justice Floyd said in his ruling.

The judge said he believed TVCatchup did "reproduce and authorise the reproduction of a substantial part of the films" when the video is transmitted through its signal to users.

The ECJ is set to provide guidance on how national courts should determine what constitutes a substantial use of video. Mr Justice Floyd said he would wait for the ECJ to pass its ruling before confirming his provisional view.

The judge did provisionally rule that TVCatchup did not authorise the reproduction of substantial parts of the copyrighted programmes when it stored data that "buffers" before playing on a user's screen.

Buffering occurs when data being loaded is processed at a different rate at which it is being received, causing a slight delay in the material being loaded.

"I think it is reasonably clear that the reproductions in the buffers have no independent economic significance, but it is not impossible that the ECJ will come to a different view," Mr Justice Floyd said.

"It is less clear whether reproduction on the screens of the users has independent economic significance. The correct answer should be made clear by the outcome [that the ECJ comes to]. I will accordingly defer final judgment on this point," the judge said.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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