The internet enables a user to watch videos or music on a computer, smartphone or tablet without the need to download the entire digital video or digital audio file. This is possible through streaming which requires only a good internet connection. Live streaming has the added benefit of allowing a user to watch live television broadcasts in real time.
Finding this as a niche market, several companies across the globe set themselves up to be able to stream TV shows to the public for free.
Broadcasters, however, have been challenging this industry. Broadcasting organisations have the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts and to communicate such broadcasts to the public if such communication is made in places accessible to the public against payment of an entrance fee.
Arguing that such practice constitutes a breach of their intellectual property rights, broadcasters dubbed such internet television broadcasting service providers as “free-riders”.
In 2007, a UK internet television broadcasting service provider, TVCatchup, started streaming TV shows for free without the broadcasters’ permission. This company effectively captured UK broadcasters’ signals and retransmitted them over the internet. A number of commercial television broadcasters who owned copyright in their television broadcasts and in the films and other items included in their broadcasts instituted an infringement claim against TVCatchup, arguing that the practice of live streaming was breaching their copyright.
TVCatchup based its defence on the exception found in the UK legislation whereby copyright in a wireless broadcast is not infringed when a person retransmits that content by cable within the area of initial broadcast.
The High Court of Justice of England and Wales sought a preliminary ruling from the CJEU in 2013 on the interpretation of the EU Copyright Directive. Following that ruling, the English High Court found that TVCatchup could rely exceptionally on the defence found in the UK Act.
Dissatisfied with this decision, the broadcasters took the case to the Court of Appeal, arguing that internet streaming services are not entitled to protection under legislation intended for cable operators. The UK Court of Appeal stayed the proceedings and several questions were referred again to the CJEU for guidance.
A recent ruling of the CJEU settled the matter for good. It established that internet television broadcasting service providers may not offer live streams of free-to-air TV broadcasts without the permission of the broadcasters.
The principal objective of the Copyright Directive is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public.
Considering that retransmission by means of internet streaming is a communication to the public, the court deemed that the live streaming of copyrighted content without the broadcaster’s consent amounted to a communication to the public and was therefore illegal.
The CJEU found that national laws could not allow immediate retransmissions by cable (including via the internet) of works broadcast on TV channels subject to public serviceobligations, even in the area of initial broadcast, as this infringed copyright.
The court held that TVCatchup, which claimed to operate legally when it streamed TV content broadcasted by ITV, Channel 4 and Channel 5, could not rely on legislation that was designed to assist in the development of cable infrastructure decades ago.
This ruling has reasserted the right of broadcasters to control how, when and where their shows are aired. The CJEU has confirmed that the online streaming by third parties of live television broadcasts is, with limited exceptions, contrary to EU law.
Josette Grech is adviser on EU law at Guido de Marco & Associates.
jgrech@demarcoassociates.com