Television broadcasters are entitled to prohibit the retransmission of their programmes by another company over the internet, the Court of Justice of the European Union has recently ruled. Such a retransmission requires the authorisation of the author of the programme.
EU law gives authors an exclusive right to authorise or prohibit any communication of their works
EU law gives authors of various works an exclusive right to authorise or prohibit any communication of their works to the public. It does so in order to ensure that authors obtain an appropriate reward for the use of their works.
The facts of a case recently referred to the CJEU for a preliminary ruling, related to the provision of an internet broadcasting service by the company TV Catchup Ltd. This service allows users to receive, over the internet, ‘live’ streams of free-to-air television broadcasts. TVC ensured that its subscribers could only obtain access to content which they were already legally entitled to watch in the UK by virtue of their television licence.
The terms to which the users of the service offered by TVC had to agree to, included the possession of a valid TV licence and a restriction of use of TVC services to the UK alone. The TVC website had the facility to authenticate the user’s location and to refuse access where the conditions imposed on users are not satisfied. Several British commercial television broadcasters objected to the service being offered by TVC and filed proceedings before the UK national courts alleging a breach of their copyright in their broadcasts and films.
They alleged that TVC was effecting a communication to the public of their works in breach of copyright law. The UK court seized of the case made a preliminary reference to the CJEU requesting guidance as to whether the service being offered by TVC constituted a communication to the public, in terms of EU law, and hence required the authorisation of the author.
The court delved into the meaning of the concept of communication. EU law provides that the right of communication to the public covers any transmission or retransmission of a work to the public not present at the place where the communication originates, by wire or wireless means, including broadcasting. Furthermore, authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications of those works to the public.
The court therefore concluded that each transmission or retransmission of a work using a specific technical means must, as a rule, be individually authorised by its author. A service whereby works are made available through the retransmission of a terrestrial television broadcast over the internet involves the use of specific technical means different from those whereby they were originally communicated. Therefore, such a retransmission must be considered to be another ‘communication’ in terms of EU law and must be authorised by the authors of the retransmitted works.
The court then examined whether the protected works have been communicated to a ‘public’. In line with previous jurisprudence on the matter, the court observed that the term ‘public’ refers to an indeterminate number of potential recipients and implies a fairly large number of people. The court pointed out that the cumulative effect of making the works available to potential recipients should be taken into account. It is therefore important to ascertain the number of persons who have access to the same work at the same time and successively.
The court concluded that the retransmission of the works over the internet was aimed at all people resident in the UK who have an internet connection and who claimed to hold a television licence in that state. Those people could access the protected works at the same time, in the context of the ‘live streaming’ of television programmes over the internet. Thus, the retransmission was aimed at an indeterminate number of potential recipients and implies a large number of people. The court therefore concluded that in the case under examination there was indeed a communication to the public in terms of EU law.
Intellectual property rights are a way of rewarding an individual for investing in innovation and creating an innovative work. Such rights cannot therefore be side-stepped in such a way as to allow others to reap the fruit that others have striven so hard to achieve.
mariosa@vellacardona.com
Mariosa Vella Cardona is deputy chairwoman of the Malta Competition and Consumer Affairs Authority and a member of the National Commission for the Promotion of Equality.