March 7, 2013
Websites that retransmit live TV online without permission from broadcasters are in breach of copyright, Europe’s highest court has ruled. The landmark ruling means that many sites showing live TV in the UK, including TVCatchup.com, must now obtain rights clearance from broadcasters.
The case was brought by ITV, Channel 4 and Channel 5 against TVCatchup.com, which streams free-to-air shows from the BBC, ITV and Channel 4.
The European Court of Justice decided that the website, which carries pre-roll advertising before shows, was in breach of a 2001 law that describes the original broadcasters as “authors” of the programming, giving them the exclusive right to approve or restrict its use.
“EU law seeks to establish a high level of protection for authors of works, allowing them to obtain an appropriate reward for the use of those works,” the ECJ said in its judgment. “Television broadcasters may prohibit the retransmission of their programmes by another company via the Internet. That retransmission constitutes, under certain conditions, a ‘communication to the public’ of works which must be authorised by their authors.”
TVCatchup.com director, Bruce Pilley, insisted that the ruling would impact “barely 30 per cent of its 12 million registered users. The service has argued that licences granted to ITV, Channel 4 and Channel 5 by media regulator Ofcom also apply to subsidiary channels such as its own service.
Pilley said: “TVCatchup.com is here to stay, we are not thinly disguised purveyors of filth, we remain Europe’s first and only legal Internet cable service and the ECJ opinion affects only a handful of channels we carry.”
Tony Ballard, a broadcast lawyer and partner at London law firm Harbottle & Lewis, described the ruling as “highly significant” suggesting that for years, nobody had known whether the unauthorised retransmission of live TV on the Internet infringed copyright. “The Court today has decided that it does. Where a service provider goes beyond merely maintaining or improving the quality of reception of the original transmission and retransmits it by a different technical means to the general public, a licence from the broadcaster or other rights holder is required,” he noted.
“The case was brought by ITV and other UK broadcasters against TVC, which retransmitted their broadcasts to its subscribers. But it is not an isolated case. It is one in an increasingly long line of decisions by which the Court appears to be laying the foundations for a new European legal order in copyright and other forms of intellectual property,” he advised.
“On the one hand, it is strengthening authors’ rights, such as by extending the concept of communication to the public, which subsumes the old broadcasting right, to encompass the activities of those who, like TVC, intervene in the distribution of broadcast services. On the other, it is limiting those rights in pursuit of single market principles by outlawing exclusive national licensing, extending the principle of exhaustion of rights to downloads, limiting the amount that copyright proprietors may charge as royalties and balancing owners’ rights against those of users,” he said.