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"New public" and "New Technical Means" - Cumulative Criteria?




by:
Crowell Moring LLP - Washington Office

 
April 3, 2013

Previously published on March 28, 2013

In its judgment of 7 March 2013, the Court of Justice of the European Union (CJEU) has confirmed that the retransmission over the internet of television broadcasts is a "communication to the public" within the meaning of Article 3 (1) of the Information Society Directive (Directive 2001/29/EC) requiring the consent of the relevant copyright owners even when this retransmission is only accessible within the broadcaster's initial catchment area.

Background

The judgment was issued following a preliminary reference made in proceedings between several UK broadcasters, ("the Broadcasters"), and TV Catchup Ltd ("TVC"), concerning the retransmission by TVC over the internet, substantially in real time, of the television broadcasts of the Broadcasters.

The Broadcasters are commercial television broadcasters who own copyrights in their television broadcasts and in films and other items which are included in their broadcasts. TVC offers an internet television broadcasting service permitting its users to receive, via the internet, ‘live' streams of free-to-air television broadcasts, including the television broadcasts of the Broadcasters.

TVC ensures that those using its service can obtain access only to content which they are legally entitled to watch in the United Kingdom by virtue of their television license. Each subscriber receives its own stream from TVC.

The Broadcasters have instituted proceedings against TVC for copyright infringement, alleging that TVC's service infringes their exclusive right to authorize a "communication to the public" of their broadcasts. TVC argued that its service does not constitute a "communication". This argument was based on several CJEU cases, including SGAE Case C-306/05, FAPL Joined Cases C-403/08 and C-429/08 and AIRFIELD Joined Cases C-431/09 and C-432/09 according to which mere "technical means to ensure or improve reception of terrestrial television broadcast to its catchment area" do not constitute a communication. TVC's second argument was that its communication was not to the "public" since the online streams were only accessible to recipients located within the broadcasters' initial catchment area. Accordingly, the ‘communication' was not addressed to a "new" public, not considered by the authors when they authorized the broadcast in question.

The Judgment

Preliminary Observation

The CJEU first reiterated that the principal objective of the Information Society Directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communications to the public. This means that the phrase "communication to the public" must be interpreted broadly.

Communication

Given that the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication, the CJEU held that such retransmission must be considered to be a ‘communication' within the meaning of Article 3(1) of the Information Society Directive. Consequently, such a retransmission cannot be exempt from authorization by the authors of the retransmitted works when these are communicated to the public.

The CJEU rejected TVC's objection that it provided a mere "technical means to ensure or improve reception of " the broadcast in its catchment area. The intervention of TVC consists in a transmission of the protected works at issue which is different from that of the Broadcaster. It is in no way intended to maintain or improve the quality of the transmission by the Broadcaster. Hence, it is not a ‘mere technical means'

To the Public

The CJEU reiterated that the term "public" refers to "an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons." That public can be determined by looking at the cumulative effect of making the works available to potential recipients i.e. the number of users who can access the service successively, as well as simultaneously. The CJEU also repeated that the fact that the potential recipients access the communicated works through a one-to-one connection is irrelevant. That technique does not prevent a large number of persons having access to the same work at the same time.

In the case at hand, the retransmission of the works over the internet was aimed at all persons resident in the United Kingdom who have an internet connection and who claim to hold a UK television license. Those people may access the protected works at the same time, in the context of the ‘live streaming' of television programs on the internet.

The retransmission in question was thus aimed at an indeterminate number of potential recipients and implies a large number of persons.

In respect of TVC's objection based on the criterion of a "new public," the CJEU held that the situations examined in the cases which gave rise to the judgments in SGAE, FAPL and Airfield, differ clearly from the situation at issue in the case at hand. Those cases concerned situations in which an operator had made accessible, by its deliberate intervention, a broadcast containing protected works to a new public which was not considered by the authors concerned when they authorized the broadcast in question. By contrast, the case at hand concerned the transmission of works included in a terrestrial broadcast and the making available of those works over the internet. Each of those two transmissions must be authorized individually and separately by the authors concerned, since each of them is made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for a public. The CJEU found that in those circumstances, it is no longer necessary to examine the requirement that there must be a new public.

Conclusion

The Court's ruling seems to suggest that the copyright owner's exclusive rights in "communications to the public" allow it to control both the technical means of transmission to the public and the public to which it is addressed. This would imply that as from the moment either the technical means or the public are "new," the copyright owner's consent would be required.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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