Fundamentally important copyright issues

Hamlins advises on fundamentally important copyright issues for internet streaming services as the long-running TVCatchup case is referred to Europe for the second time.

Hamlins LLP continues to advise TVCatchup on how copyright legislation applies to the retransmissions of public service broadcasts over the internet, as the long-running case of ITV and Others v TVCatchup and Others is referred to the Court of Justice of the European Union for the second time.

Laurence Gilmore, Media and Entertainment Partner at Hamlins, leads a team advising TVCatchup in a dispute with ITV Channel 4, Channel 5 and various other broadcasters. In this latest ruling, the Court of Appeal considered an appeal by the broadcaster against the decision of the High Court which permitted TVCatchup to continue its service. The Court of Appeal was unable to decide how to apply EU law in conjunction with the provision of the Copyright Designs and Patents Act 1988, which allows TVCatchup to retransmit public service broadcasts. Accordingly it decided it was necessary to send the issue back to the Court of Justice, asking for clarification via a preliminary ruling on a particular issue.

TVCatchup provides a free service which allows viewers to watch some live UK television channels on PCs or smartphones over the internet. The broadcasters originally alleged that this model constituted a copyright infringement and the High Court referred the central issue of whether streaming constituted a ‘communication to the public’ to the Court of Justice. Although the Court of Justice, following its decision in FAPL V QC Leisure and Others, confirmed that the retransmission did constitute a communication to the public, Justice Floyd (now Lord Justice Floyd) confirmed that there was a permissible defence under the UK national copyright law and TVCatchup could continue their service.  

ITV appealed this issue to the Court of Appeal.  Virgin intervened and supported TVCatchup’s opposition to the broadcasters’ Appeal.  The Court of Appeal decided that it would be unable to definitively rule in the interpretation of the relevant section of UK law, without the guidance of the Court of Justice on the meaning of the relevant EU Directive. Lord Justice Kitchin highlighted the importance of the matter in the judgment, explaining “they are important issues in relation to which a uniform approach across the European Union is essential.” Kitchin LJ did, however, give his preliminary view that he believed the European legislature were unlikely to have intended the wording in the article of the directive in question to have limited the scope of the relevant defence which the member state had provided.

Laurence Gilmore says:

“It is necessary that the law keeps pace with technological developments as new ways of accessing public broadcasts over the internet become mainstream – the issue before the Courts in this case will set a legal blueprint that the entire industry will follow. Clarification of European law is required to provide certainty for businesses like TVCatchup, Virgin and for the broadcasters themselves, so we look forward to assisting the Court of Justice once again in what is an important issue of law”