TV Catch Up Caught Out
Are you one of the 10 million active users of TV Catchup? Do you have the mobile app installed on your smartphone? Following a successful High Court challenge by three of the UK’s biggest broadcasters, ITV, Channel 4 and Channel 5 (“the Broadcasters”), the TV Catchup service has been forced to alter the services it provides.
The TVCatchup business model involves the relay of free-to-air TV channels to computers and mobile devices. The service is free to use, but limited to those persons who can access the internet in the UK and who hold a valid TV licence. As of April 2009, the site has been using stringent IP monitoring facilities to detect and block access from many proxy servers, to ensure that users are situated within the UK.
TVCatchup retransmits free-to-air channels over the internet on the authority granted under section 73 of the Copyright, Designs and Patents Act 1988 (“the Act”), which allows for the retransmission of ‘qualifying services’. The Act essentially permits the unlicensed retransmission of broadcasts over a cable network.
Yet when the Broadcasters became aware of the TVCatchup service they challenged it in Court on the grounds that the retransmission of programmes amounted to copyright infringement. In support of its challenge the Broadcasters sought to rely on a European Information Society Directive which provides the Broadcasters with the right to authorise or prohibit any communication to the public of their works.
The key question for the Court was whether TVCatchup’s live streaming amounted to a ‘communication to the public’ and therefore infringed the copyright evident in the Broadcasters’ broadcasts. In 2011 the Judge provided a ‘provisional opinion’ that the streaming service operated by TVCatchup constituted a “communication to the public” but the matter was referred to the Court of Justice of the European Union (“CJEU”) to clarify how the EU’s Information Society Directive should be interpreted before definitively ruling on the point. The CJEU said:-
“The concept of ‘communication to the public’ ... covers a retransmission of the works included in a terrestrial television broadcast where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver."
The Court therefore found that TVCatchup were communicating with the public and as a result had infringed the Broadcasters’ copyright. The Court granted an injunction refraining TVCatchup from streaming any of the programmes of the Broadcasters without a licence or their prior consent and TVCatchup were saddled with a hefty adverse costs order. However, TVCatchup were granted permission to appeal and this may not be the end of the road yet for this legal battle.
To all the streaming services that re-use copyrighted works without the permission of the original creator of the works this ruling will not be welcomed. The decision confirms that copyright owners cannot be excluded from decisions regarding the re-use of their original works. If the courts had found in TVCatchup’s favour the decision would have struck a serious blow to the fundamentals of copyright law, which allow copyright owners to control the distribution and misuse of their works.
We at Blacks deal with all aspects of intellectual property law including copyright infringement.