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High Court: TVCatchup reproduces copyrighted films ... in buffers

Bits stored on servers when relayed to viewers

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An internet streaming company does reproduce "a substantial part" of films in "memory buffers" contained on its servers when it relays films to users of its service, the High Court has ruled.

Justice Floyd affirmed an earlier provisional ruling he gave on the point in a wider case involving UK broadcasters ITV, Channel 4 and Channel 5. The broadcasters claim that internet streaming service TVCatchup.com uses material they have the rights to without permission. TVCatchup.com relays free-to-air TV channels and films to computers and smartphones. It claims that it only makes temporary copies of the films and has said that is a lawful use of the material.

The judge said he had formed his conclusion on the reproduction aspect of the case to do with film relays and memory storage following a ruling on the point by the European Court of Justice (ECJ) last month.

The judge has asked the ECJ to rule on separate questions of whether TVC's streaming service constitutes a "communication to the public". If the ECJ rules that the streams are communications to the public, TVCatchup.com will be in violation of copyright, Justice Floyd said.

"I conclude that there is a reproduction of a substantial part of the films in the memory buffers of TVCatchup.com’s servers," Justice Floyd said in the ruling seen by Out-Law.com.

"If the [broadcasters] succeed on communication to the public, they will be entitled to relief under that heading," he said.

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".

In his provisional ruling in July, Justice Floyd said that TVC does store 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, he said at the time. Justice Floyd had said he believed TVCatchup.com did "reproduce and authorise the reproduction of a substantial part of the films" when the video is transmitted through its signal to users.

Last month, in a ruling to do with the use of foreign decoders to broadcast live English Premier League football, the ECJ said that copyright owners do have the "exclusive right to authorise or prohibit direct or indirect" reproduction of their content by others in the form of "transient fragments of the works within the memory of a satellite decoder and on a television screen, provided that those fragments contain elements which are the expression of the authors’ own intellectual creation, and the unit composed of the fragments reproduced simultaneously must be examined in order to determine whether it contains such elements".

The ECJ has still to determine questions related to whether TVCatchup.com's service constitutes a "communication to the public". 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 (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.

TVCatchup.com argued that it only provides the "technical means" to the public to access copyrighted content and therefore does not communicate the material to the public.

Justice Floyd provisionally rejected that argument and said he was not persuaded to rule on the issue without the ECJ considering a question on the issue.

The judge has asked the ECJ to determine whether "the right to authorise or prohibit a 'communication to the public of their works by wire or wireless means' [as set out in the EU's Information Society Directive]" extends to authors who allow their works to be broadcast on free-to-air terrestrial TV with the intention being that it is received by viewers somewhere in the EU but where "a third party" enables subscribers who would otherwise be able to lawfully view the broadcast content on TV to "log on" to their server to "receive the content of the broadcast by means of an internet stream".

Justice Floyd has asked whether the ECJ's answer to that question is different if the third-party servers only enable "one-to-one" connections for each subscriber.

The ECJ is also asked whether it makes a difference if the third-party service is funded by advertising which appears "during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content ... or ... within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture" but where the ads contained within the broadcasters' broadcasts "are presented" to subscribers when they view the streamed content.

The ECJ is also asked to consider whether its answer to the original question changes if "the intervening organisation is providing an alternative service to that of the original broadcaster, thereby acting in competition with the original broadcaster for viewers; or acting in competition with the original broadcaster for advertising revenues?"

Copyright © 2011, OUT-LAW.com

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

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