04 December 2010

Copyright: ITV Broadcasting Ltd v TV Catch Up Ltd

According to the knowledgebase of its website TVCatchup is an “internet television platform” which enables subscribers to watch live television on a computer or mobile device from anywhere in the UK. In ITV Broadcasting Ltd and Others v TV Catch Up Ltd [2010] EWHC 3063 (Ch) (25 Nov 2010) Mr. Justice Kitchin described that company’s activities at paragraphs [3] to [4] of his judgment as follows:

“3. The defendant operates a website at www.tvcatchup.com which allows members of the public to watch live UK television, including the claimants' channels, on their computers, iPhones and games consoles. Any member of the public wishing to access the service must first become a member. He can then select one of over 50 channels by pressing on the appropriate icon, whereupon he is taken to a new screen on which the defendant provides a stream of the programme being broadcast on that channel. There is a slight delay before the member sees the programme because the defendant first shows one of its own advertisements. This is how it makes its money.

4. For the purposes of this application, there is no dispute that the defendant's service operates in the following way:

i) ordinary domestic aerials are set up to receive UK free-to-air broadcasts;

ii) these aerials are connected to a cluster of servers, each containing a television tuner card which acts as a decoder; this converts the broadcast signal into an audio-visual data stream which is then sent to second cluster of servers;

iii) the second cluster of servers convert the data stream into a format (called a flash stream) suitable for delivery by the internet; the flash stream is sent to a third set of servers called the streaming servers;

iv) when a member clicks on a channel on the defendant's website, his computer or other device connects to one of the streaming servers and receives a flash stream of all the programming on the channel he has selected.”

ITV Broadcasting Ltd., ITV 2 Ltd. and other terrestrial broadcasters are suing TVCatchup for copyright infringement under s.20 of the Copyright, Designs and Patents Act 1988 as amended by the Copyright and Related Rights Regulations 2003 (SI 2003/2498) to implement art 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 ("the Information Society Directive"). This was an application by TVCatchup for the broadcasters’ claim to be dismissed under CPR Part 24 on the grounds that their action had no real prospect of success.

The Issue

Put very simply, the defendant’s case that it had done nothing more than provide its subscribers with the equivalent of another television set. What could be wrong with that?

S.20 (1) of the 1988 Act restricts communication of a work to the public to the copyright owner and sub-section (2) defines communication to the public to include (a) the broadcasting of the work; and (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them." TVCatchup was not broadcasting anything. Neither was it making the work available to the public in such a way that members of the public could access it at a place and time individually chosen by them as TVCatchup offered its subscribers real time streaming. End of story, Yes?

Judgment

Well, “no” actually. As the judge said:

“subsection (2) defines communication to the public as communication to the public by electronic transmission. The definition then identifies two specific ways in which such communication may take place, namely: (a) broadcasting the work and (b) making the work available by electronic transmission on demand. But I do not read the definition in subsection (2) as being limited to these forms of communication. To the contrary, it says in terms that it includes them. In my judgment it also covers all other acts which constitute communication to the public of the work by electronic transmission.”

TVCatchup’s counsel had argued that all communications of broadcasts to the public use the same technology of broadcasting but the significant difference is that “broadcasting” is communication to the public as a whole whereas he offered communication only to individual subscribers. The flaw in that argument, said the judge, was that it confused the protected work with the restricted act. He explained:

“The protected work, the broadcast, is the transmission of visual images, sounds and other information for reception by or presentation to members of the public. The restricted act is the communication to the public by electronic transmission of all of those images, sounds and other information. In the same way, section 17 of the Act prohibits the making of a copy of a broadcast and section 18 prohibits the issuing of copies of the broadcast to the public. There is no requirement that the copy itself must be a broadcast. Indeed, it may be no more than a photograph (section 17(4)).”

Accordingly, his lordship was not persuaded that the claim was bound to fail so he dismissed the summary judgment application.

Comment

It is important to stress that the judge did not give judgment to the broadcasters. He simply said that they could win at trial and he has allowed them to continue their action.

The scope of s.20 came up earlier this year in Twentieth Century Fox Film Corporation and Others v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13, [2010] FSR 21, [2010] EMLR 17, [2010] ECDR 8 which I took over as counsel at a very late stage earlier this year. As I observed in my reflections on that case, that was the first time that the meaning and full extent of communication right had been fully argued at a trial in the United Kingdom. For professional reasons (not least the duty of confidence that counsel owes her clients) I would rather not discuss in too much detail the arguments that I raised in that case beyond saying that paragraph (15) of the recitals makes clear that the Information Society Directive was adopted in order to give effect to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (“WPPT). Art 8 of the WIPO Copyright Treaty provides for communication to the public:

“Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”

Art 10 of the WPPT provides for making available of fixed performances to the public:

“Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Art 3 of the Information Society Directive keeps these two rights separate. Paragraph 1 implements art 8 of the WIPO Copyright Treaty by restricting communication to the public of copyright works to the copyright owner:

“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”

Paragraph 2 implements art 10 of the WPPT:

“Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.”

The vice of s.20 (2) of the 1988 Act as amended is that it conflates different articles drawn from separate treaties

“References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—

(a) the broadcasting of the work;

(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them."

By so doing, the statutory instrument that amended the 1988 Act has extended the scope of copyright protection far beyond the previous legislation (as the judge seems to have accepted here and as I think he accepted in Newzbin) andt also far beyond the requirements of the Information Society Directive. I would have loved to have argued that point on appeal in Newzbin but as the judge observed in refusing me leave to appeal success on this point would not make any difference to the outcome of the case as I would still have lost on other grounds. I do hope I or others will get the chance to argue it in future cases because I believe that s.20 as it stands gives copyright owners far too much.

Should anyone want to discuss this note with me they can call me on 0800 862 0055 or contact me through this form.

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