ITV v TV Catchup Ltd: The End Of The Road For TV Catchup?

The Chancery Division has recently handed down an order in ITV v TV Catchup Ltd which prohibits the defendant, TV Catchup Ltd, from streaming certain free-to-air tv channels via its online service at www.tvcatchup.com. The case revolved around whether TV Catchup Ltd was infringing ITV, Channel 4 and Channel 5's copyright in their broadcasts by making available to the public all the free-to-air UK channels over its website. After initial hearings in 2011, the High Court referred a number of questions to the Court of Justice of the European Union ("CJEU") regarding the key aspects of a claim for infringement of copyright by a communication to the public. The recent order draws on the CJEU ruling and may bring the matter to its conclusion, although both parties have been granted leave to appeal on certain aspects of the case.

Introduction

The right for the owner of a copyright work to authorise or prohibit its "communication to the public" is set out in Section 20(1) of the Copyright, Designs and Patents Act 1988 ("CDPA") which implements Article 3 of the Copyright Directive1.

Section 20(2) of the CDPA clarifies that a "communication to the public" means a communication by "electronic transmission".

The ITV v TV Catchup Ltd case provides valuable guidance on how the concept of a "communication to the public" should be interpreted.

ITV v TV Catchup

ITV, Channel 4 and Channel 5 (the "Broadcasters") have been battling with TV CatchUp Ltd ("TVC") for a number of years over the live streaming of the Broadcasters' channels on TVC's website.

TVC offers access to all of the free-to-air UK channels, including those of the Broadcasters and all the BBC channels, to any subscriber who signs up to the service on its website, www.tvcatchup.com. (The name "TV Catchup" is actually a little misleading as subscribers are not able to view content on demand, although this was previously the case. The service now only allows subscribers to view an internet stream of the live broadcast.)

When a subscriber signs up to the service he must confirm that he is both located in the United Kingdom and entitled to watch UK television, i.e. he holds a valid TV licence. Therefore, strictly the only people that should be able to access TVC's online service are those that could at any point simply switch on their televisions and watch any of the free-to-air broadcasts.

TVC is free to its subscribers but the service is funded by advertising. Advertisements are shown both before the live broadcast is made available to the subscriber and later around the video stream (known as "in-skin" advertising). The advertisements in the original broadcasts remain unaltered.

TVC do not have permission from the Broadcasters to stream their live broadcasts and, since the Broadcasters themselves are also funded predominantly through advertising, TVC is in effect in direct competition with them.

The High Court Claim

The Broadcasters' claim was heard in the Chancery Division in 2011, with initial hearings in June and July of that year and a further hearing in November2.

The Broadcasters claimed to own the copyright in two types of works in their channels: broadcasts and films3. Although it appears from the judgement that TVC may initially have raised some form argument against the Broadcasters' ownership of the copyright in these types of works, this was later dropped.

The Broadcasters claimed that their copyrights in both the broadcasts and films were being infringed in two ways:

by a communication of the works to the public; and by the making, or authorising the making of, transient copies of the works in TVC's servers and on the screens of users. It is claim 1.) that proved to be the main point of contention in the case.

Communication to the Public.

TVC raised a number of defences to claim a).

First, TVC asserted that Subsection 20(1)(c) of the CDPA was not validly enacted. TVC claimed that under the Copyright Directive, the general right of authors to prohibit or authorise the...