Hamlins have been successful in obtaining a reference to the Court of Justice of the European Union ("ECJ") to decide important questions of law in relation to the live streaming of television over the internet.
Hamlins act for TV Catchup Limited who provide to their members free live streaming over the internet of 51 domestic free to air television channels.
Legal proceedings were issued against TV Catchup Limited by ITV, Channel 4 and Channel 5 ("the Broadcasters") in 2010. The Broadcasters alleged that the TV Catchup service constitutes an unlawful communication to the public of their broadcast and film works, and that TV Catchup copy those works in their servers and on the user's screens. The Claimants sought an injunction, damages, delivery up and costs.
TV Catchup defended the claim on a number of grounds; that their service did not constitute a communication to the public, that they are able to take advantage of the defence to copying in Section 28A of the Copyright Designs and Patents Act 1988 ("the 1988 Act") and finally that a number of the channels were covered by the defence in Section 73 of the 1988 Act.
Following a four day trial at the High Court in London, Mr Justice Floyd has directed that the ECJ is required to answer a number of questions arising from the Claimants’ and Defendant's arguments. The crucial issues on which the Court was undecided are whether the service provided by TV Catchup constitutes a communication to the public and whether there is reproduction of a substantial part of the Claimant's broadcasts in the buffers of the Defendant's servers, or on the user of the services screen.
Mr Justice Floyd also found that the TV Catchup service to users’ domestic premises was not an infringement of the Broadcasters’ rights in respect of those channels in Section 73 of the 1988 Act. These include the BBC channels, a regional or national Channel 3 service, Channel 4, Channel 5, S4C and S4C digital.
Hamlins’ Partner Laurence Gilmore, assisted by Nicholas Cotton, instructed Martin Howe QC and James Whyte of 8 New Square Chambers.
For any further information please contact Laurence Gilmore, 020 7355 6102.