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UK ITV v TVCatchup case

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Cast your mind back to last December and you might recall, though the midst of winter's murky memories, a bright and cheeky interlude in which the recently-promoted Mr Justice Kitchin starred, ITV Broadcasting Ltd and others v TV Catch Up Ltd [2010] EWHC 3063 (Ch).

This was a copyright infringement action with a twist to it: instead of sitting there and waiting to be sued, the defendant (TV Catchup) decided to take the initiative and go apply in summary proceedings for the action against it to be dismissed on the basis that it had no chance of succeeding at trial. The outcome, which was a little bit like what happens when a fly picks a fight with an oncoming windscreen, was a decision not to dismiss the action straight off but to allow the claimant copyright owners to have their day -- four days as it turned out -- in court (click here for the IPKat's note on the summary judgment application).

ITV said that TV Catchup ('TVC') had infringed the copyright in its broadcasts by communicating those broadcasts to the public through a process of electronic transmission. This consisted of TVC running a website which allowed ordinary viewers to watch live United Kingdom television -- including broadcasts by ITV -- on their very own computers, smart phones and games consoles. To do this, the viewer had to become a member of TVC, which gave him the option to choose one of 50 or so channels. The viewer, having made his or her choice, would be taken to a new screen on which TVC provided a stream of the programme being broadcast.


"For goodness' sake, Henry,
I said 'pause', not 'paws'"
The ITV agreed that these transmissions to viewers were not "broadcasts" under section 6 of the Copyright, Designs and Patents Act 1988 (CDPA) and that TVC hadn't made ITV's broadcasts available to the public so that they could be accessed from a place and at a time individually chosen by them. However, ITV did feel that TVC’s services, which, er, communicated its broadcasts to the public by means of an electronic transmission were, if it might be so bold as to suggest this possibility, a communication of the broadcasts to the public by electronic transmission under section 20 of the same Act. TVC disagreed: in its view, in order to infringe the copyright in a broadcast under section 20, the alleged infringer's transmission must itself be a broadcast within the meaning of section 6 (which even the ITV agreed it wasn't). Mr Justice Kitchin thought this line of attack, ingenious and original though it might be, had no chance of succeeding, so we all looked forward to the trial.

Today Mr Justice Floyd delivered a 39-page, 145 paragraph judgment which reflected the judge's thoroughness in dealing with the parties' respective arguments concerning an area of law which has become almost unbearably complex and taken on an almost metaphysical dimension, divorced from the mundane nature of the activities it governs. He had to consider the validity of the amended version of section 20 itself, as well as a variety of issues relating to TVC's defences, one of which was reliance on the CDPA, s.28A which states:
"Copyright in a ... film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable -
(a) a transmission of the work in a network between third parties by an intermediary; or
(b) a lawful use of the work;
and which has no independent economic significance".

This was most definitely not
the sort of transmission that
Fluffikins was thinking of ...
The judge's at-a-glance ruling goes like this:
the CDPA s.20(c) was not ultra vires the InfoSoc Directive;
TVC was indeed communicating films and broadcasts to the public, but, just to be on the safe side, it's a good idea to refer this issue to the Court of Justice of the European Union for a preliminary ruling, so hold your breath! ;
subject to anything the Court of Justice might say to the contrary in its keenly-awaited ruling in Football Association Premier League v QC Leisure [Advocate General's Opinion this February noted briefly here, with links], TVC had reproduced a substantial part of the films in its buffers (which could in theory hold up to 8 seconds worth of video streaming) and on screen;
provisionally, the reproduction in the buffers and on the screens was not a reproduction of a substantial part of a broadcast ... but this is also to be referred to the Court of Justice of the European Union for a preliminary ruling. Keep holding that breath!
final judgment on the application of the CDPA, s.28A to reproduction of the films and broadcasts in the buffers and on the screens should await the outcome of the Football Association Premier League case -- but the judge's provisional view is that the defence does apply to the reproductions in the buffers;
the CDPA section 73 defence ['Reception and re-transmission of wireless broadcast by cable': the Kat isn't even going to try to explain this one here] applies to the qualifying services ...
... but not in respect of re-transmission to mobile phones or of out of area services. [Throwing caution to the wind, Merpel says "the finding that, for s.73 purposes, "internet streaming" is "cable" is no great shock, since it reflects obiter observations in two earlier decisions, even though the scope of the s.73 defence now looks rather limited. However, it will be fun to see how the distinction Floyd J makes between mobile phone access and land line access will work in practice"].
So, all in all, errors and omissions excepted and without prejudice to anything that the Court of Justice may say, do or think in the future, this looks like a fairly good day in court for the commercial broadcasters. But what do the Kats say?

Without the aid of an abacus on which to count them, the IPKat finds it increasingly difficult to keep track of the increasing number of cases in which the meaning of the words "communication to the public" has been referred to Europe's highest court for an authoritative ruling. Is it six now? Merpel quips, soon we'll have as many rulings on "communication to the public" as we have on "use of a sign" in trade mark law. IPKat.

 Retransmission d’un programme TV en streaming nécessite l’autorisation des auteurs    Cour de justice de l’union européenne 4ème chambre Arrêt du 7 mars 2013   Jeudi 7 mars 2013 Cour de justice de l’union européenne 4ème chambre Arrêt du 7 mars 2013 ITV Broadcasting et autres / TVCatchup autorisation - télévision - internet - flux rss - ayant-droit - streaming - rediffusion - télédiffusion - tiers - communication au public « Directive 2001/29/CE – Article 3, paragraphe 1 – Diffusion par un tiers au moyen d’internet des émissions de radiodiffuseurs de télévision commerciaux – ‘Live streaming’ – Communication au public » 1 La demande de décision préjudicielle porte sur l’interprétation de l’article 3, paragraphe 1, de la directive 2001/29/CE du Parlement européen et du Conseil, du 22 mai 2001, sur l’harmonisation de certains aspects du droit d’auteur et des droits voisins dans la société de l’information (JO L 167, p. 10).

 Cour de justice de l’union européenne 4ème chambre Arrêt du 7 mars 2013  

Le cadre juridique Le droit de l’Union 3 Les considérants 23 et 27 de la directive 2001/29 énoncent : « (23) La présente directive doit harmoniser davantage le droit d’auteur de communication au public. . « 1. 3. Le droit anglais. Playing Catchup - CJEU clarifies that streaming is "communication to the public" It has been an awfully long day for the AmeriKat.

Playing Catchup - CJEU clarifies that streaming is "communication to the public"

And although she is falling asleep even pawing these words at her keyboard, she must report on the awfully busy day for the Court of Justice of the European Union. Today two decisions/opinions dealing with scope of copyright in the new media were delivered. First, the Advocate-General's Opinion in the Amazon.com reference from the Austrian courts (see Eleonora's excellent summary here) and second, the CJEU's decision in the ITV v TVCatchup reference from Mr Justice Floyd in the English courts. Background. Documents. Language of document : PAOLO Mengozzi presentate il 7 marzo 2013 (1) Causa C‑521/11 Amazon.com International Sales Inc.

Documents

Amazon EU Sàrl Amazon.de GmbH Amazon.com GmbH, in Liquidation Amazon Logistik GmbH contro Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH [domanda di pronuncia pregiudiziale, proposta dall’Oberster Gerichtshof, (Austria)] «Diritto d’autore e diritti connessi – Direttiva 2001/29/CE – Diritto di riproduzione – Eccezioni e limitazioni – Eccezione della copia per uso privato – Equo compenso – Possibilità di rimborso del prelievo per copie private applicato a dispositivi, apparecchi e materiali collegati alla riproduzione digitale – Finanziamento di istituzioni a fini sociali e culturali per i titolari dei diritti – Pagamento dell’equo compenso in diversi Stati membri»

AG Mengozzi on the notion of equitable remuneration. A few months ago the IPKat provided a list of some of the yummiest references for a preliminary ruling currently pending before the Court of Justice of the European Union.

AG Mengozzi on the notion of equitable remuneration

Among these, there is Case C-521/11 Amazon.com International Sales and Others, a reference from the Oberster Gerichtshof (Austria) concerning the interpretation of Articles 2 and 5 of Directive 2011/29 (the InfoSoc Directive), in particular the notion of equitable remuneration following the sale of recording media [Merpel usually speaks of equitable remuneration when she goes out on a date]. Austro-Mechana is an Austrian collecting society which is in charge of obtaining equitable remuneration following the sale of blank supports, pursuant to Article 42ter(1) UrhG.

Since 2003 Amazon has engaged, among other things, in the online sale of recording media. Austro-Mechana has sued Amazon before Austrian courts, seeking payment of equitable remuneration following the goods sold over its platform. 2.1.) Playing Catchup - CJEU clarifies that streaming is "communication to the public" Documents. Language of document : JUDGMENT OF THE COURT (Fourth Chamber) (Directive 2001/29/EC – Article 3(1) – Broadcasting by a third party over the internet of signals of commercial television broadcasters – ‘Live streaming’ – Communication to the public) In Case C‑607/11, REQUEST for a preliminary ruling under Article 267 TFEU from the High Court of Justice (England and Wales) (Chancery Division) (United Kingdom), made by decision of 17 November 2011, received at the Court on 28 November 2011, in the proceedings ITV Broadcasting Ltd, ITV 2 Ltd, ITV Digital Channels Ltd, Channel 4 Television Corporation, 4 Ventures Ltd, Channel 5 Broadcasting Ltd,

Documents

A Winter's Tale: if you can't take the heat, keep away from the Kitchin. Saucy attempt by Catchup fails to cut the mustard.

A Winter's Tale: if you can't take the heat, keep away from the Kitchin

ITV Broadcasting Ltd and others v TV Catch Up Ltd [2010] EWHC 3063 (Ch) was another of last week's Chancery Division decisions for England and Wales with which the IPKat has been struggling to catch up. A ruling by Mr Justice Kitchin, it's another of those increasingly popular ways that true Brits try to keep warm in the chilly winter, by jumping up and down, yelling "We want summary judgment" [If this is way of keeping warm, shouldn't it be 'summer' judgment, asks Merpel].

In this case, ITV said "You're infringing"; TV Catchup (TVC) said "No we're not -- and you haven't a chance of succeeding if the case goes to trial! ". "Oh yes we have", said ITV. "Prove it", said TVC. So what was this all about? TV Catchup case goes to Europe. Cast your mind back to last December and you might recall, though the midst of winter's murky memories, a bright and cheeky interlude in which the recently-promoted Mr Justice Kitchin starred, ITV Broadcasting Ltd and others v TV Catch Up Ltd[2010] EWHC 3063 (Ch).

TV Catchup case goes to Europe

ITV Broadcasting Ltd & Ors v TV Catch Up Ltd [2010] EWHC 3063 (Ch) (25 November 2010) TV Catchup case goes to Europe. Caught out: TV streaming service forced to drop 21 channels in copyright infringement case. The English High Court has ordered TVCatchup to stop some of its services after ruling that they infringed the copyright of broadcasters.

Caught out: TV streaming service forced to drop 21 channels in copyright infringement case

TVCatchup is a television streaming service that allows users to watch TV channels “live” online. However, following legal action from ITV, Channel 4 and Channel 5, the service was found to infringe the broadcasters’ film and broadcast copyrights and it will no longer be able to stream their digital and catch-up television channels. TVCatchup is also prohibited from streaming the main ITV, Channel 4 and Channel 5 networks to mobile devices via mobile telephone networks. Unauthorised TV live streaming breaches copyright, rules European court. Websites that retransmit live TV over the internet without permission from broadcasters are in breach of copyright, Europe's highest court has ruled in a judgment with wide ranging implications.

Unauthorised TV live streaming breaches copyright, rules European court

The landmark ruling published on Thursday by the European court of justice (ECJ) means that dozens of sites showing live TV in the UK, including the London-based TVCatchup.com, must now get rights clearance from broadcasters. Legal experts said the decision was likely to spark a renewed clampdown by rights holders against similar sites, many of which show live sport. The case was brought by ITV, Channel 4 and Channel 5 against TVCatchup.com, which streams free-to-air shows from the BBC, ITV and Channel 4. The ECJ decided that the website, which carries pre-roll advertising before shows, was in breach of a 2001 law that describes the original broadcasters as "authors" of the programming, giving them the exclusive right to approve or restrict its use. 1. 2. 3. ITV,%20Ch%204,%20Ch%205%20v%20TV%20Catchup%20Sealed%20Order%20%207th%20October%202013%20LJ%20Floyd.