TV streaming service fails to have copyright suit thrown out

TV Catch Up Ltd attempted to have a copyright infringement case against it thrown out of court because its online rebroadcasting service of the main UK television channels is not itself a broadcast.

The High Court refused to accept the online company's arguments, saying that it had mixed up the law's provisions on what behaviour is prohibited by the law and what material is protected by it.

TV Catch Up operates a website which broadcasts a live stream of what is showing on UK television channels to users who sign up for the service.

It was sued by ITV, Channel 4 and Channel 5 who argued that the service is in breach of copyright law. As well as protections for the sound, images and words used in television programmes, the Copyright, Designs and Patents Act (CDPA) contains specific protection for broadcasts.

"Any member of the public wishing to access the service must first become a member," said the High Court ruling, describing the TV Catch Up service. "He can then select one of over 50 channels by pressing on the appropriate icon, whereupon he is taken to a new screen on which the defendant provides a stream of the programme being broadcast on that channel. There is a slight delay before the member sees the programme because the defendant first shows one of its own advertisements. This is how it makes its money."

The CDPA protects broadcasts from unauthorised "communication to the public".

It says, in section 20: "References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include –
(a) the broadcasting of the work;
(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them".

TV Catch Up said that it was a one-to-one service, not a broadcast, and that it showed programmes whenever they were happening, not at "a place and time individually chosen" by users. It is therefore not bound by section 20 of the Act, it said.

Mr Justice Kitchin in the High Court said that section 20 implements parts of the Information Society Directive of the European Union.

"It is clear [from the Directive] that the right of communication of a work to the public must be interpreted broadly so as to cover all communication to the public not present where the communication originates. It includes, but is not limited to, broadcasting and access on demand," he said.

"I do not read [section 20] as being limited to these forms of communication. To the contrary, it says in terms that it includes them," he said. "In my judgment it also covers all other acts which constitute communication to the public of the work by electronic transmission."

Mr Justice Kitchin rejected the argument that to break the law protecting broadcasts, TV Catch Up's services would have to be broadcasts themselves.

"I am unable to accept this argument which, in my judgment, confuses the protected work and the restricted act. They are different," said Mr Justice Kitchin. "The protected work, the broadcast, is the transmission of visual images, sounds and other information for reception by or presentation to members of the public. The restricted act is the communication to the public by electronic transmission of all of those images, sounds and other information."

"In the same way, section 17 of the Act prohibits the making of a copy of a broadcast and section 18 prohibits the issuing of copies of the broadcast to the public. There is no requirement that the copy itself must be a broadcast. Indeed, it may be no more than a photograph (section 17(4))," he said.