By John Cloke, senior associate; Patrick Mitchell, legal director; and Jonathan Salt, trainee, DLA Piper
The Court of Appeal in England has recently made a second reference to the Court of Justice of the European Union in the case brought by UK free-to-air broadcasters ITV, Channel 4 and Channel 5 against the internet streaming service TV Catchup in relation to the unauthorised streaming of their channels. However, the CJEU’s decision may be rendered commercially irrelevant by legislative changes proposed by the UK government.
By way of background, previous decisions (see here and here) had left TV Catchup able to stream a limited number of PSB channels via the internet without need for broadcaster approval. The justification here is the defence provided by section 73 of the Copyright, Designs and Patents Act 1988 (CDPA). This allows for qualifying services (which include the PSB channels) to be retransmitted by cable without infringing copyright. The UK court held that in this context the reference to ‘cable’ includes, and therefore allows, retransmission via the internet, but does not include transmission to mobile devices via a mobile telephone network.
Not happy with TV Catchup’s ongoing retransmissions via the internet, the broadcasters have posed the question of whether the section 73 defence (and, in particular, including the internet within its scope) is compatible with the permissible exceptions to copyright as set out at a European level. A section 73-type defence is not specifically listed in the EU Copyright Directive, but Article 9 of the Directive rather opaquely permits Member States to retain provisions covering ‘access to cable of broadcasting services’. Does this justify the continuing presence on the UK statute books of section 73?
After analysing the legislative framework behind the CDPA and the Directive, the Court of Appeal has decided to refer the issue to the European Court of Justice. There are a number of possible outcomes, including a decision that: (a) Article 9 permits the section 73 defence (including retransmission via the internet); (b) that the defence should be limited to ‘traditional’ cable (excluding the internet); or alternatively (c) that the defence can only apply where there is a statutory ‘must carry’ obligation in relation to the relevant broadcasting service.
The outcome will be of academic interest, but by the time a decision is made it may well have little commercial impact. The reason for this is that the UK government has recently stated its intention to remove the section 73 defence from the statute books – a move that seems likely to be terminal for TV Catchup.