POLICY POSITION published on 08 Mar 2013

EU Court of Justice: Internet live streaming of broadcast is piracy

The case concerns copyright proceedings between several UK television broadcasters and an Internet operator, TVCatchup Ltd (TVC). TVC provides "live streaming" of various UK terrestrial and satellite broadcast channels over the Internet, i.e. simultaneously with the original broadcasts, through both fixed and mobile networks within the UK, and is funded by its own (added) advertising, without prior authorisation of the relevant broadcasters or any other rightholders.

The UK High Court provisionally found that the TVC service infringed both broadcast and film copyright under UK law. However, TVC claimed that it acted as a "technical intermediary" only. TVC argued that its Internet service could only be accessed by subscribers in the UK, who had paid the UK broadcast licence fee and therefore its retransmission of UK broadcasts via the Internet was not directed at a new audience. The UK High Court referred this issue to the European Court of Justice for a preliminary ruling.

The European Court held that the TVC service was clearly not merely intended to maintain or improve the quality of the reception of the broadcast transmissions. The TVC retransmission was to be considered as a new "communication to the public" under Article 3 of the 2001 Copyright Directive, subject to prior authorisation by the broadcasters and any other relevant rightholders. This would also be true in cases where the retransmitting service was neither of a profit-making nature nor in direct competition with the original broadcasting services. The Court found that it was not necessary to decide on the question of whether such relay would need to be directed at a public which is different from that of the original broadcasting service.

This long-awaited judgment clarifies that unauthorised simultaneous relays of broadcasting services by third party Internet operators are infringing broadcast programmes' exclusive rights under EU law. The Court focussed primarily on the fact that the Internet operator's relay service constituted a separate and technically different means for transmitting the works embedded in the programmes, as compared to the broadcasts. The case did not involve any simulcasting services or so-called "catch-up" services provided by broadcasters themselves.

The UK High Court will now have to make a final decision on the lawfulness of TVC's relay service, including on possible defences for TVC under UK copyright law, which were not subject to the European proceedings.

The full text of the judgment is available here.

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