The long-running case brought by ITV and other broadcasters against TV Catchup Limited continues with a second referral to the Court of Justice of the European Union (CJEU). This time, the English Court of Appeal is seeking clarification on whether UK copyright law, previously found to permit live  streaming of terrestrial TV in limited circumstances, goes beyond what is permitted under Article 9 of the Information Society Directive.

 
Background

• Broadcasters (including ITV and Channel 4) allege that TV Catchup’s online streaming service breaches their copyright in communicating their broadcasts live on the internet.
• A previous reference to the CJEU provided that the concept of a communication to the public within the meaning of the Directive included an unauthorised retransmission of a broadcast by way of internet streaming, both inside and outside the intended reception area of the original broadcast. This meant that broadcasters could, in theory, prohibit the re-transmission of their broadcasts online.
• However, the English High Court had previously found that the streaming service had a defence under UK copyright law, which allowed for an immediate re-transmission via cable in the original reception area. The High Court found that this defence did not cover streaming to mobile devices.
• Both parties appealed the decision. TV Catchup maintained that the defence under UK copyright law should go further to cover these mobile streaming services (rather than just domestic Wi-Fi), whereas the broadcasters felt that a defence originally intended for conventional cable networks should not be relied upon for internet streaming. They argued that the defence could only be relied on if it fell within the scope of Article 9 of the Directive, which preserves only certain provisions under national law relating to copyright protections.
• While the appeal by TV Catchup was dismissed by the Court of Appeal (who refused to allow streaming via mobile networks), the Court did feel that the scope of Article 9 was not clear, resulting in the need for a second reference.

If the CJEU advises that UK copyright law goes beyond the Directive, there is a risk that it will only be able to be relied upon by traditional cable networks thereafter. That outcome could have serious implications for owners of websites providing real time streaming of TV programmes, which may be prohibited from streaming certain content without a license.

Contributed by Brian McElligott.

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