July 23, 2015

This article was written by Nishani Reed, Solicitor and first published in Entertainment Law Review, June 2015.

Background

The ITV v TVCatchup saga concerns a copyright infringement claim by a number of broadcasters including ITV, Channel 4 and Channel 5 (the “Broadcasters”) in relation to TVCatchup’s simulcasting of copyright protected broadcasts and films. TV Catch-Up (“TVC”) provides an ad-funded internet-based live streaming service in the United Kingdom, enabling its users to view “real-time” audiovisual content. The Broadcasters asserted that TVC’s streams infringed their copyright in certain television broadcasts and films by, inter alia, communicating these works to the public contrary to Copyright, Designs and Patents Act 1988 (“CDPA”) s.20(1). In turn, TVC relied upon a number of defences, including the “cable re-transmission” defence in CDPA s.73.

The Court of Appeal has recently concluded that a reference to the Court of Justice of the European Union (“CJEU”) is required to clarify whether the saving provision in art.9 of Directive 2001/29¹ (the “Copyright Directive”) permits the retention of the “cable re-transmission” defence in CDPA s.73, and, if it can, whether that defence extends to re-transmission via the internet or only to traditional cable TV re-transmission.

CDPA s.73

Section 73 provides that, where a wireless broadcast made from a place in the United Kingdom is received and immediately re-transmitted by cable, the copyright in the broadcast and any work included in the broadcast is not infringed:

• if the re-transmission by cable is in pursuance of a relevant requirement (the “must-carry” exception); or
• if and to the extent that the broadcast is made for reception in the area in which it is re-transmitted by cable and forms part of a qualifying service (the “reception area” exception).

TVC contended (inter alia) that, even if its services constituted a communication to the public within s.20(1), it was entitled to rely on the “reception area” exception in the s.73 defence on the basis that its services use geo-blocking technology to ensure that only UK users are able to access the service.

Decision at first instance

Following a number of hearings and a reference to the CJEU, the High Court held that TVC had infringed copyrights in the Broadcasters’ broadcasts and films by streaming to members of the public only to the extent that s.73 did not apply. The judge considered that TVC’s internet re-transmission services fell squarely within s.73 but that the defence did not extend to streams to mobile telephone networks. In effect, therefore:

• Insofar as TVC had streamed ITV, Channel 4 or Channel 5 to members of the public by cable (including, crucially, transmission via the internet) and to users situated in the region to which the original broadcasts were made, it had not infringed the Broadcasters’ copyright by reason of s.73.
• TVC’s infringements were limited to: (i) all channel services at issue except ITV, Channel 4 and Channel 5; (ii) streams of ITV, Channel 4 and Channel 5 to mobile devices via any mobile telephone network; (iii) streams of ITV, Channel 4 and Channel 5 to users situated out of the region to which the original broadcasts were made.

The parties appealed against the judge’s findings in relation to the s.73 defence and its application on the facts.

Arguments on appeal

Much of the argument on appeal centred on the proper construction of the term “re-transmission by cable” for the purpose of s.73. Counsel for the Broadcasters put*Ent. L.R. 182 forward a number of arguments in support of a narrow reading of the term as limited to dedicated “traditional” cable systems under the control of conventional cable operators such that the defence would not apply to internet streaming services. Broadly, the arguments focused on:

• the legislative history of the provision; and
• the normative effect of the relevant EC Directives as implemented into domestic law.

Legislative history

Arguments based on the domestic development of the provision did not take the Broadcasters very far. In particular, the Court of Appeal found that the intention of s.73 was to cover all forms of wire transmission and was not limited to conventional cable TV systems. This in turn led to a finding that there was nothing in the legislative history of the provision to suggest that TVC’s services did not constitute “retransmission by cable” for the purpose of s.73.

Directives

However, the Broadcasters also relied on the court’s interpretative obligations in light of relevant Directives, arguing that:

• the term “cable” has a uniform and precise meaning across a number of Directives, including Directive 93/83² (the “Satellite and Cable Directive”) and the Copyright Directive;
• accordingly, its narrow use in the Satellite and Cable Directive should lead to an equally narrow interpretation of the same term across all other relevant Directives, including the Copyright Directive;
• the Marleasing principle of conforming interpretation requires the court to interpret s.73 consistently with the Copyright Directive; such that
• section 73 should be construed narrowly and so as to protect only conventional cable TV systems.

Counsel for TVC disputed that there was a need for an “all-purpose” concept of the term “cable” across the Directives. TVC further relied on art.9 of the Copyright Directive, which provides as follows:

“This Directive shall be without prejudice to provisions concerning in particular patent rights, trade marks, design rights, utility models, topographies of semi-conductor products, type faces, conditional access, access to cable of broadcasting services, protection of national treasures, legal deposit requirements, laws on restrictive practices and unfair competition, trade secrets, security, confidentiality, data protection and privacy, access to public documents, the law of contract.”(emphasis added)

Article 9 thus confers on Member States the right to retain certain existing provisions of national law, including those concerning “access to cable of broadcasting services”, which TVC argued included s.73 such that there could be no incompatibility issue and the Marleasing principle did not apply. In response, the Broadcasters contended that “access to cable of broadcasting services” referred to conventional cable TV systems and, in any event, was not broad enough to encompass the “reception area” exception to s.73 such that the provision fell outside art.9.

Decision on appeal

All three Court of Appeal judges agreed—albeit for different reasons—that the scope and application of art.9 was unclear and that the question should be referred to the CJEU.

The leading judgment was delivered by Kitchin LJ. He expressed the provisional view that the phrase “access to cable of broadcasting services” in art.9 encompasses both “must carry” and “reception area” exceptions and permits the retention of s.73, which could not be read as excluding TVC’s services.

Conversely, Underhill LJ’s provisional view was that, as a matter of language, art.9 only extended to cover “must carry” provisions and not the “reception area” provisions. If that was right, however, he expressed doubt as to whether it would be possible to interpret the “reception area” provisions in conformity with the Directive as that would require the court to simply strike down the “reception area” provision, “which represents a clear legislative choice on a primary policy issue”. Alternatively, if Underhill LJ’s provisional view was wrong and the CJEU were to rule that art.9 does indeed cover the “reception area” defence, but only in relation to conventional cable TV networks, he thought it would be possible for the court, using the Marleasing principle, to read the meaning of “cable” as being limited to conventional cable TV networks only.

Different again was Arden LJ’s view that the “expectation domestically must be that meaning [of ‘cable’ in s.73] is the same as the meaning of ‘cable’ in the [Copyright Directive]” and “the latter meaning is a question of EU law and is not acte clair“.

Comment

The s.73 defence was originally introduced to encourage the rollout of analogue cable services at a time when cable services tended to be a mere technological alternative to “on air” broadcasting, extending the reach of broadcast terrestrial signals into areas of poor reception. A recent Consultation Paper on the issue expresses the Government’s view that s.73 was never intended to cover the internet and, in any event, is no longer relevant and could affect the future prospects of commercial public service broadcasters, concluding that “the Government is therefore committed to the removal of s.73 and to legislate on s.73 to this effect at the earliest opportunity”.

Separately, the European Commission has written to the Government pursuant to TFEU art.258 requesting the repeal of s.73, thereby opening formal infringement proceedings on the issue. Intervention by the Commission may be based—at least in part—on the CJEU’s earlier findings in the TVCatchuplitigation; in particular, that each transmission and re-transmission of a work using specific technical means must be individually authorised by the rightholder, notwithstanding that the work can already be received in the relevant catchment area by other technical means.

In light of the political impetus at both national and EU level to review the law in this area, the relevance of this latest question referred to the CJEU by the Court of Appeal may have diminished significantly by the time the preliminary ruling is handed down.