The Court of Appeal has (albeit with some regret) made a second reference to the Court of Justice in the dispute between broadcasters (including ITV, Channel 4 and Channel 5) against TV Catchup (TVC) relating to TVC’s live streaming service of broadcast TV programmes, including films.
In October 2013, Floyd LJ issued an order following the referral he had made to the CJEU when he heard the case at trial. We discussed this step in the litigation in our October 2013 IP Bulletin. Floyd LJ’s order confirmed that TVC had infringed the Claimants’ film and broadcast copyrights by communicating those works to the public (in line with the CJEU’s decision on the first reference in this case). However, to the extent that TVC had streamed the Claimants' public service broadcasting (PSB) channels to members of the public in the UK by cable (which Floyd J determined included online transmission but not transmission to mobile devices via a mobile network), it could rely on section 73 of the Copyright, Designs and Patents Act 1988 as a defence.
This section, which in its original form pre-dates the Information Society Directive, broadly provides that copyright in a broadcast of a PSB channel is not infringed where it is received and immediately re-transmitted via cable to users situated in the region where the original broadcasts were made (i.e. the UK). The broadcasters argued that the defence does not extend to internet transmissions and is restricted to transmissions on dedicated cable networks operated by conventional cable programme providers.
Floyd LJ disagreed with the broadcasters' interpretation but also, however, made clear his view that the section 73 defence was not compatible with the Information Society Directive which sets out an exhaustive list of copyright exceptions which may be adopted by individual EU Member States. As a result of this statement, the Secretary of State for Business, Innovation and Skills and Virgin Media both applied to intervene in the appeal.
The Court of Appeal has now decided to refer questions to the CJEU on the scope of the section 73 defence and particularly whether it is preserved by Article 9 of the Information Society Directive which provides for the continued application of certain existing legal provisions following the implementation of the Directive, including in relation to ‘access to cable of broadcasting services'.
The questions will now be determined, but the reference is likely to take another couple of years to be dealt with by the CJEU. The Court reported also that the European Commission had sent a formal notice to the UK in relation to section 73 but the content of this notice was not before the Court.
UPDATE: The Government has issued a consultation (“The balance of payments between television platforms and public service broadcasters’) in which, amongst other proposals (relating to amendment or removal of the ‘must offer’ and ‘must carry’ requirements, and electronic programme guide prominence), it indicates its intention to repeal section 73. The Government says that the original policy objective of encouraging the roll-out of analogue cable services is now outdated. It notes that removing section 73 will create freer negotiations between PSBs and cable providers on the terms of carriage but is seeking views on the implications of its removal for those commercial relationships, and what transitional arrangements may be needed.
The consultation refers to the TV Catchup litigation by noting that online players showing PSB content are seeking to rely upon section 73 but states the Government’s view is that section 73 does not apply to content transmitted over the internet.
The consultation is open until 16 June 2015