AG weighs in on retransmitting broadcasts in TVCatchup case
An advocate general (AG) at Europe’s highest court has said that legislation allowing the cable retransmission of broadcasts without the consent of copyright owners does not fall within the scope of the copyright directive (Directive 2001/29/EC).
In an opinion handed down on Thursday, September 8, the AG stated that this applies where the retransmissions are “simultaneous and limited to areas in which the broadcasts were made for reception, irrespective of whether or not the retransmissions are of broadcasts on channels which are subject to certain public service obligations”.
The case centres on a dispute between ITV and Channels 4 and 5 and TVC, with the broadcasters claiming that TVC infringed their copyright by allowing the streaming of their broadcasts free of charge.
TVC was founded in 2007 and operates a cable service which retransmits BBC, Channel 4, Channel 5 and ITV programmes. The BBC was not part of the case.
The broadcasters sued TVC at the English High Court for breaching the copyright in their films and broadcasts, saying UK law prevents such a communication of works to the public.
The High Court ruled that TVC had not infringed the broadcasters’ copyright, as the court found that TVC had a defence under section 73 of the Copyright, Designs and Patent Act 1988.
Section 73 states that if a transmission is made for reception in the area where the retransmission forms part of a qualifying service, the copyright is not infringed.
The broadcasters and TVC appealed against the High Court’s decision at the English Court of Appeal, with the broadcasters challenging the section 73 defence. TVC challenged the finding that section 73 didn’t extend to live streaming on mobile networks.
The Court of Appeal rejected both arguments and upheld the High Court’s decision.
Those two rulings came after a preliminary judgment by the CJEU, which held in March 2013 that internet streaming companies must obtain broadcasters’ permission to retransmit their copyrighted works to the public.
The AG wrote: “Article 9 of Directive 2001/29/EC … must be interpreted as meaning that legislation which permits the retransmission by cable of broadcasts, without the consent of the copyright holders, where the retransmissions are simultaneous and limited to areas in which the broadcasts were made for reception, irrespective of whether or not the retransmissions are of broadcasts on channels which are subject to certain public service obligations, does not fall within the scope of that provision.”
Channel 5 declined to comment.
