TV Streaming: ITV Broadcasting Ltd. and Others v TV Catchup Ltd.
"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."
"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."
"i) Section 2(2)(b) is not to be approached restrictively as if it were a Henry VIII clause: it is sui generis because it is for the purpose of implementing treaty obligations of this country: Oakley , ;Ahmed ;
ii) The primary objective of any legislation implemented under section 2(2) must be to bring into force laws which, by treaty, the United Kingdom has agreed to make part of her laws: Oakley ;
iii) Section 2(2)(b) nevertheless goes further than section 2(2)(a) in that it allows for legislation which is not necessary for the implementation of a Directive: Oakley , , , ;
iv) Moreover section 2(2)(b) permits legislation to be enacted which is consistent with the Directive but which does not have the same purpose: Cukorova ;
v) It is thus incorrect to say that the "child" cannot be wider, larger or "greater" than the parent: Oakley , , ;
vi) How much further the sub-section goes cannot be defined in the abstract – one just has to apply the statutory language to the case concerned: Oakley , ; Cukorova ;
vii) It is not correct to ask whether the measure is distinct, separate or divorced from the Directive and only then to hold it to be unrelated: Oakley , ;
viii) A measure would not arise out of or be related to an obligation if the Minister was not at the same time bringing into force a Directive, or did not have the trigger of a Regulation becoming directly applicable: Oakley ;
ix) Equally, a tenuous or general relationship with the subject matter of the Directive will not be enough: Jacob LJ's example of a Directive on mistake being used to reform the whole of contract law or Moses LJ's connection with financial collateral arrangements or stability of markets: Oakley ; Cukurova ;
x) In some cases, consistency of subject matter and purpose between Directive and Regulation may not be enough: Cukurova ;
xi) The fact that the Directive expressly contemplates that member states may take further steps in the direction in question may be a factor indicating that the measure is within the power: Pothecary;
xii) However, the fact that the measure involves an original policy choice does not necessarily take it outside section 2(2)(b): Oakley, ;
xiii) Measures which represent a small further step on the same path as trodden by the primary provisions of the Directive may be within the power, even if they widen the protection of the law to a wider class of individuals or cases than required by the Directive: Pothecary ;
xiv) The extent to which the measure is consistent with pre-existing domestic law may be a factor. So if a Directive requires a law to be enacted in relation to one species of case recognised by domestic law: it may be legitimate to legislate at the same time for a sub-species of that case: Pothecary ."
"What is less clear from the decision of the CJEU in Rafael Hoteles is whether there is a communication to the public when an intervening organisation, acting for its own profit, intervenes in full knowledge of the consequences of its acts and in order to attract an audience to its own transmission and advertisements, to communicate the original broadcast signal to members of the public who would in fact be able to access the original broadcast signal using their own television sets or laptops in their own homes. Reading paragraph  of the judgment in isolation would give an affirmative answer. But other passages suggest that it is material to ask whether there is a "new public" and whether the hotel guests would have been able to access the broadcasts without the intervention. I consider that the principles which it is possible to extract from Rafael Hoteles do not go far enough to enable me to answer that question conclusively in the claimants' favour. I propose therefore to refer a question for the opinion of the Court of Justice on this point."
"Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or 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."
"The copyright in the broadcast is not infringed—(a) if the re-transmission by cable is in pursuance of a relevant requirement, or(b) 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."