The Appeal: Warner Music UK Ltd and others v Tuneii Inc
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Court of Appeal (Sir Geoffrey Vos MR, Lady Justice Rose and Lord Justice Arnold) Warner Music UK Ltd and others v TuneIn Inc,  EWCA Civ 441 (26 March 2021)
This was an appeal by Tunein Inc. against Mr Justice Birss judgment in Warner Music UK Ltd and others v TuneIn Inc  EWHC 2923 (Ch) (1 Nov 2019) which I discussed in Copyright - Warner Music UK Ltd and Others v TuneIn Inc. 4 Nov 2019. The claimants, who between them, account for more than half of the market for digital sales of recorded music in the UK and about 43% globally, sued Tunein Ltd for copyright infringement. TuneIn does not collect, transmit or store any third party audio content but it does connect users to third party radio stations' streams and earns money from advertising and subscriptions. Mr Justice Birss found that TuneIn had infringed the claimants' copyrights by communicating their works to the public, by authorizing infringement and as joint tortfeasors.
The Grounds of Appeal
Most appeal court judgments list the grounds of appeal. There is nothing like that in the transcript of this judgment. That may have been because TuneIn's grounds were unusually long and numerous and perhaps not as clear as they might have been. Lord Justice Arnold, who gave the lead judgment in Warner Music UK Ltd and another v TuneIn Inc.  EWCA Civ 441 (26 March 2021) said at para :
"The appeal raises significant issues of copyright law, in particular as to the scope of the right of communication to the public."
In the next paragraph, he complained that:
"As the judge explained, the internet is global and users in the UK can, in the absence of geo-restriction, access websites hosted, and content posted on or streamed from such websites, from anywhere in the world. Intellectual property rights, however, are territorial. At least in the case of copyright and similar rights and trade marks, the CJEU has held that accessibility of a website from a Member State is not sufficient to give rise to an infringement of rights conferred by the law of that State and that the relevant act must be targeted at that State: see Case C-324/09 L'Oréal SA v eBay International AG  ECR I-6011 (trade marks), Case 5-/11 Donner [EU: C:2012:370] (copyright) and Case C-173/11 Football Dataco Ltd v Sportradar GmbH [EU: C:2012:642] (database right). This case law has been applied in this jurisdiction to communication to the public: EMI Records Ltd v British Sky Broadcasting Ltd  EWHC 379 (Ch),  Bus LR 884 ("EMI v BSkyB"). The law has twice been reviewed by this Court in the trade mark context: Merck KGaA v Merck Sharp & Dohme Corp  EWCA Civ 1834,  ETMR 10 and Argos Ltd v Argos Systems Inc  EWCA Civ 2211,  Bus LR 1728.
TuneIn contended that those stations did not target the UK merely because TuneIn had targeted the UK. Lord Justice Arnold disagreed. He acknowledged that the correct question was whether the foreign internet radio stations available on TuneIn's app - and more specifically the streams emanating from those stations to which TuneIn provided links - were targeted at users in the UK. That did not mean that the judge had conflated that question with whether TuneIn had targeted the UK. In Lord Justice Arnold's view, Mr Justice Birss had correctly focussed on the consequence of TuneIn's being targeted at the UK. The foreign stations presented to UK users by TuneIn Radio had therefore become targeted at the UK by reason of TuneIn's targeting at this country.
"Some of TuneIn's grounds of appeal (grounds 5-10) are general in nature while others relate specifically to the judge's reasoning in relation to categories 1, 2 and 3 of the sample stations (grounds 11-20 and 22-35), although there is some duplication between the latter and the former."
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society replaced "to broadcast the work or include it in a cable programme service" with "to communicate the work to the public" in s.16 (d) of the Copyright Designs and Patents Act 1988. Reg 6 (1) of the same statutory instrument replaced the previous s.20 with the following:
"(1) The communication to the public of the work is an act restricted by the copyright in--
S.6 of the European Union (Withdrawal) Act 2018 as amended by the European Union (Withdrawal Agreement) Act 2020 and reg 3 of The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 enables the Court of Appeal to depart from the judgments and orders of the CJEU but only on the same basis that the Supreme Court has power to depart from one of its own precedents or of one of the House of Lords.
TuneIn's primary contention was that the Court of Appeal should depart from the entire body of case law of the CJEU on communication to the public. Alternatively, it argued that the Court of Appeal should depart from the European Court's decision in Case C‑160/15, GS Media BV v Sanoma Media Netherlands BV and others EU:C:2016:644, ECLI:EU:C:2016:644,  WLR(D) 477,  EUECJ C-160/15,  Bus LR 1231.
Sir Geoffrey Vos, Master of the Rolls, thought that it would be both unnecessary and undesirable for the Court of Appeal to depart from retained EU law for the reasons set out in paras  to  of his judgment. To do so, in his judgment, would create legal uncertainty for no good reason. Lady Justice Rose agreed at para .
TuneIn's premise was that it was essentially a search engine like Google. The trial judge had rejected that contention and so did Lord Justice Arnold. TuneIn was more than just a search engine. It was a platform that categorized and facilitated access to specific content.
TuneIn had not challenged (I) and its challenge to (ii) had been rejected above. In the learned Lord Justice's view. the issue that remained was
"whether TuneIn communicated the streams to a new public. As counsel for TuneIn accurately submitted, this depends on the scope of the authorisation by the right holders of the original communication."
- Category 1: radio stations licensed in the UK;
- Category 2: radio stations not licensed in the UK or anywhere else;
- Category 3: radio stations that are licensed for a territory other than the UK; and
- Category 4: Premium stations created for TuneIn and made available exclusively for TuneIn's subscribers that are based in the USA, are not licensed for the UK at all and do not pay the statutory US licence fee.
"As the judge correctly stated, TuneIn Radio is a different kind of communication (in the sense that it has the features of aggregation, categorisation, etc discussed above) targeted at a different public in a different territory. Even assuming that the operation of a statutory scheme in a foreign territory amounts to a form of deemed consent on the part of the rights holders to the original communication to the public, including persons who access the streams via simple hyperlinks or conventional search engines, there is no reason to conclude that that authorisation extended to the UK public targeted by TuneIn Radio's communication. On the contrary, counsel for TuneIn accepted that TuneIn had never sought to defend this claim on the basis that targeting UK users (let alone targeting them by TuneIn Radio's communication) was licensed by virtue of the payments made by foreign internet radio stations in their local territories."
Lord Justice Arnold also dismissed two of TuneIn's subsidiary points. The first was that the judge below had wrongly reversed the burden of proof by his use of the phrase "absent evidence to the contrary". Lord Justice Arnold regarded that as no more than an expression of caution lest a subsequent case with different facts should lead to a different conclusion. TuneIn also complained that Mr Justice Birss had failed to balance the right to free expression against the claimants' property rights as required by the recitals to the Information Society Directive. Lord Justice Arnold pointed out that the judge had applied principles expressed in GS Media, Renckhoff and Bild where the CJEU had expressly carried out such a balancing exercise. He added that "striking a fair balance does not involve giving freedom of expression precedence over copyright, which is the effect of TuneIn's argument."
Turning to Category 2, the trial judge had said that he could not see how an unlicensed station could be in a better position than the stations in Category 3. However, he also considered the position if his finding for Category 3 was wrong. He held that the Category 2 stations were "either actually unlicensed, or at least … not in full compliance with the local rights regime[s]". He went on to hold that TuneIn was not able to rebut what he described as "the GS Media presumption", and therefore it had committed acts of communication to the public with respect to the category 2 stations. TuneIn challenged the alternative finding on no less than 14 grounds Many of those had already been answered by Lord Justice Arnold and he disposed of the rest peremptorily. The principal argument was that Mr Justice Birss had misa[plied the CS Media test which criticism the learned lord justice rejected.
"The starting point is the stream simulcast or webcast by the foreign station. The act of communication is the provision by the Pro app of the link to that stream (in the context described in paragraphs 17-20 above). That involves precisely the same technical means as the original communication. It makes no difference if the Pro app has the record function enabled. First, this cannot depend on whether the user activates the record function or not. Secondly, the mere potential for the user to record the stream does not affect the provision of the stream in any way. The communication remains the link to the stream."
The claimants tried to counter that point by arguing that the recording function created a new public. Lord Justice Arnold answered that argument at :
"The presence or absence of the record function in the Pro app makes no difference to the public which was taken into account by the rights holders when they authorised the original communication by the category 1 stations: it remains the public in the UK."
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