Case C‑607/11, ITV et al v. TVCatchup

Television broadcasters may prohibit retransmission of their programmes by another company via the internet

>> TVCatchup Ltd (‘TVC’) offered an internet television broadcasting service. This service permitted its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts.

TVC ensured that its subscribers could obtain access only to content which they were already legally entitled to watch in the United Kingdom by virtue of their television license. The terms to which users must agree included the possession of a valid TV license and a restriction of use of TVC services to the United Kingdom alone. The TVC website had the facility to authenticate the user’s location and thereby to refuse access where the conditions imposed on users were not satisfied.

The claimants in the main proceedings were commercial television broadcasters who owned copyright under national law in the television broadcasts themselves and in films and other items which were included in their broadcasts. They were funded by advertising carried in their broadcasts, and therefore took exception to the distribution by TVC over the internet, substantially in real time, of their television broadcasts. They had for that reason brought proceedings against TVC, alleging, inter alia, that there was a communication to the public which was prohibited both by national law and by the Information Society Directive (Directive 2001/29).

The referring court asked, in essence, whether the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as meaning that it covered a retransmission of the works included in a terrestrial television broadcast:
–        where the retransmission was made by an organization other than the original broadcaster,
–        by means of an internet stream made available to the subscribers of that other organization who might receive the retransmission by logging on to its server,
–        on the assumption that those subscribers were within the area of reception of the terrestrial television broadcast and might lawfully receive the broadcast on a television receiver.

The Court first of all held that the principal objective of Directive 2001/29 was 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 communication to the public. It followed that ‘communication to the public’ must be interpreted broadly (see Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others (2011)).

The Court noted that Directive 2001/29 did not define the concept of ‘communication’ exhaustively. Thus, the meaning and scope of that concept must be defined in the light of the context in which it occurred and also in the light of its objective.

The Court found that given that the making of works available through the retransmission of a terrestrial television broadcast over the internet used a specific technical means different from that of the original communication, that retransmission must be considered to be a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29. Consequently, such a retransmission could not be exempt from authorization by the authors of the retransmitted works when these were communicated to the public.

The Court admitted that it followed from the case-law of the Court that a mere technical means to ensure or improve reception of the original transmission in its catchment area did not constitute a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29 (see Joined cases C-431/09 and C-432/09, Airfield and Canal Digitaal, (2011)). Thus, the intervention of such a technical means must be limited to maintaining or improving the quality of the reception of a pre-existing transmission and could not be used for any other transmission.

The Court found that in the present case, however, the intervention by TVC consisted in a transmission of the protected works at issue which was different from that of the broadcasting organization concerned. TVC’s intervention was in no way intended to maintain or improve the quality of the transmission by that other broadcasting organization. In those circumstances, that intervention could not be considered to be a mere technical means. Moreover, in order to be categorized as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a ‘public’.

The Court reiterated that the term ‘public’ in Article 3(1) of Directive 2001/29 referred to an indeterminate number of potential recipients and implied, moreover, a fairly large number of persons (see Case C306/05 SGAE (2006)).

The Court held that the retransmission in question was aimed at an indeterminate number of potential recipients and implied a large number of persons. Consequently, the Court found that, by the retransmission in question, the protected works were indeed communicated to a ‘public’ within the meaning of Article 3(1) of Directive 2001/29.