The copyright case brought by UK broadcasters against TV Catchup, the restreaming site will have to go to the Court of Justice of the European Union says the UK High Court.
ITV, Channel 4 and Channel Five sought an injunction to stop TV Catchup restreaming their live channels. The UK court ruled provisionally this summer but deferred some judgements and said he would refer others to the CJEU. Now he has ruled on the matters.
Streaming doesn’t copy films: It has ruled that, though TV Catchup’s servers do reproduce substantial parts of films, it had not been proved that the site, as a “rolling” service, holds substantially large fragments of those films on its servers at any one time.
TVC is not copying broadcasts; Justice Floyd also rules: “I cannot see any basis on which it can sensibly be argued that there is a reproduction of a substantial part of a broadcast except on the rolling basis.” He declined to refer the matter to the CJEU.
Earlier Floyd had said TV Catchup could defend itself under Section 73 of the Copyright Designs and Patents Act 1988, which allows services to retransmit broadcasts over cable. The broadcasters had appealed to the judge to refer this point to the European court. But Floyd has rejected their call, saying: “I think this is a veiled attempt to ask the CJEU to construe the provision of national law… There is no real scope for doubt.”
Floyd says: “Everything depends on whether (TV Catchup’s) use was lawful. That now depends on whether TVC’s activities amount to ‘communication to the public’.” On this, he is asking the European Court:
– Whether the content owners can prohibit communication to the public of their content via third-party internet stream if that content has previously been authorised for communication via analogue means.
– Whether it makes any difference that TV Catchup ads pre-roll and ‘in-skin’ ads over broadcasters’ streams and whether such a service is competing for revenue with broadcasters.
TV Catchup’s advisors; “will take several years before a decision is handed down by the CJEU. The nub of the European case law is the communication has to be a new public, ie. not the public the broadcasters initially send their broadcasts to. One of many examples would be a TV in a hotel bedroom. TVC’s position is very different as there is no new public.”