The UK High Court has referred a number of questions to the European Court of Justice (“ECJ”) on whether the live streaming of free-to-air television programmes by third parties over the internet via computers, smart phones and games consoles breaches European copyright law. TV Catchup Limited provides live streaming services to the public by relaying TV channels such as BBC, ITV and Chanel 4 via its website.  The UK High Court’s provisional findings are largely in favour of broadcasters’ rights.

Under UK law, the “communication to the public” of a copyright work (such as a broadcast or the underlying copyright in a broadcasted film) is a restricted act and unlawful unless done with the permission of the copyright owner or in line with certain exceptions.

In his provisional opinion, the UK judge found that:

• The interception of broadcasts by TV Catchup Limited and the live streaming of these broadcasts constituted communications to the public and are therefore restricted acts.  However, he referred this question to the ECJ for a preliminary ruling.  The judge stated that TV Catchup Limited’s activities are in his “view an independent exploitation, of the works and other subject matter.  They are not merely supportive of the original exploitation of the work”
• By storing “buffer” data before it plays on a user’s screen, TV Catchup Limited is not reproducing a substantial part of broadcasts but again he referred this question to the ECJ for a preliminary ruling. Buffering is where data are processed at a slower rate than that at which they are received, causing a delay in the material being loaded and relayed to the user
• TV Catchup Limited is reproducing a substantial part of the films relayed on its streaming service in its buffers and on users’ screens but confirmation of this view would ultimately depend on the outcome of the Football Association Premier League v QC Leisure case currently before the ECJ.  Here the ECJ is expected to provide guidance to national courts on what constitutes substantial use of a video. (please see here for previous article)

The findings of the ECJ, if they are in line with the UK judge’s provisional opinions, will have a significant impact on the streaming of third party broadcasts in Ireland and throughout the EU. This ruling is expected to determine the issue of whether live streaming services providers such as TV Catchup Limited can continue to re-transmit free-to-air television programmes without broadcaster consent and if so, the context in which this will be permitted.

Contributed by David Cullen and Brian McElligott, Technology & Commercial Contracts Department