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1 March 2017Copyright

CJEU hands positive copyright ruling on retransmission to broadcasters

Legislation in EU member states should not state that broadcast copyright is not infringed when it is immediately retransmitted by cable where it was initially broadcast, according to Europe’s highest court.

The ruling, by the Court of Justice of the European Union (CJEU), is the latest development in a long-running dispute between UK broadcasters ITV and Channels 4 and 5, and UK-based TV streaming service TVCatchup (TVC).

It also applies to retransmissions online.

Previously, the broadcasters claimed that TVC infringed their copyright by allowing the ‘live’ streaming of their broadcasts free of charge.

ITV and the other 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 court referred a request for a preliminary ruling concerning the interpretation of the concept of ‘communication to the public’ in article 3(1) of Directive 2001/29 to the CJEU.

In 2013, the CJEU affirmed that online streaming was a “communication to the public”.

Following this, the High Court ruled that TVC had infringed the broadcasters’ copyright, but that it could rely on a defence under section 73 of the Copyright, Designs and Patents Act 1988.

Section 73 is called “Reception and re-transmission of wireless broadcast by cable”.

The broadcasters appealed to the English Court of Appeal, challenging the section 73 defence.

The Court of Appeal stayed the appeal pending a further reference to the CJEU.

In today’s judgment, the CJEU explained that the objective of the directive is to “establish a high level of protection of authors” and, in light of this protection, the concept of ‘communication to the public’ must be interpreted broadly.

“In the present case, it is common ground that the retransmission at issue in the main proceedings does not fall within the scope of any of the exceptions and limitations set out exhaustively,” said the CJEU.

It concluded that the directive, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed “in the case of the immediate retransmission by cable, including, where relevant, via the internet”.

A joint statement from ITV, Channel 4 and Channel 5 said: “We are delighted that the European court has ruled that our channels should not be retransmitted online or on cable without our authorisation."

They added that the finding recognises the vital importance of IP protection in maximising investment in original UK TV content and “preventing free-riding”.

The statement said that the government has already confirmed that section 73 is no longer relevant and will be repealed as part of the Digital Economy Bill 2016-17.

“Following this judgment, we now look forward to its immediate removal, as the government has promised to Parliament,” concluded the statement.

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Copyright
12 September 2016   An advocate general 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.