A recent ruling by the the Court of Justice of the European Union (the “CJEU”) has re-asserted the right of broadcasters to control how, when and where their shows are aired.
In light of a question referred to the CJEU as part of a long-running dispute between a number of British broadcasters and internet streaming service “TVCatchup”, the CJEU has indicated that the online streaming by third parties of live television broadcasts is, with limited exceptions, contrary to EU law.
TVCatchup previously enjoyed the protection of the “Section 73 Defence”, an exception under the UK Copyright, Designs and Patents Act 1988 which permits the re-transmission of wireless broadcasts by cable to users in the area in which the broadcast was originally transmitted. The English High Court had held that this exception allowed for the retransmission of free-to-air broadcasts over the internet, but did not extend to streaming services to mobile devices over mobile networks. However, the CJEU’s recent ruling highlighted that Section 73 must be read in light of the Copyright Directive, an EU Directive designed to bolster copyright protection for authors.
The upshot of this is that European law, taking priority over national law, will generally prohibit the online streaming of free-to-air broadcasts, even in the geographic area of the initial broadcast.
What does this mean for broadcasters and streaming websites?
The equivalent legislation in Ireland (Section 103 of the Copyright and Related Rights Act 2000) virtually mirrors the UK’s Section 73 and will also need to be interpreted in light of the Copyright Directive.
The CJEU’s ruling indicates that online streaming services subject to European law will only be able to provide live retransmissions in the very limited circumstances outlined exhaustively in Article 5 of the Copyright Directive. The decision may also lead to public service broadcasters charging retransmission fees to cable operators. With Irish public service broadcasters already developing their own streaming services (e.g. RTE Player), websites that offer unauthorised streaming services are likely to become less and less influential in the market. For those involved in the area of online streaming services, now is the time to consider protecting your business from vulnerability to similar litigation before the Irish courts.
Contributed by Kellie O’Flynn
Specifically Article 9 of Directive 2001/29/EC of the on the harmonisation of certain aspects of copyright and related rights in the information society (also known as the Copyright Directive and the InfoSoc Directive)