The European court ruled in case C‑275/15 ITV Broadcasting Limited, ITV2 Limited, ITV Digital Channels Limited, Channel Four Television Corp., 4 Ventures Limited, Channel 5 Broadcasting Limited, ITV Studios Limited versus TVCatchup Limited, TVCatchup (UK) Limited, Media Resources Limited.
This case concerns the following:
The appellants in the main proceedings are commercial television broadcasters who own copyright under national law in their television broadcasts and in the films and other items which are included in their broadcasts. They are funded by advertising carried in their broadcasts.
TVC offered an internet television broadcasting service, permitting its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts, including television broadcasts transmitted by the appellants in the main proceedings. Following TVC’s being put into administration, its business and services are now carried on by TVC UK, under a licence granted by Media Resources Limited.
The appellants in the main proceedings instituted proceedings against TVC before the High Court of Justice (England & Wales), for breach of their copyright. That court referred a request for a preliminary ruling concerning the interpretation of the concept of ‘communication to the public’ in Article 3(1) of Directive 2001/29 to the Court of Justice.
Following the judgment of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147), the High Court of Justice (England & Wales), found that TVC had infringed the copyright of the appellants in the main proceedings by communication to the public. As regards three television channels, namely ITV, Channel 4 and Channel 5, that court found, however, that TVC could rely on a defence under section 73(2)(b) and (3) of the CDPA.
The appellants in the main proceedings brought an appeal before the referring court. TVC UK and Media Resources Limited were added as respondents to the proceedings before the referring court.
The referring court explains that section 73 of the CDPA provides a defence to an action for infringement of copyright in a broadcast or in any work included in a broadcast, applicable ‘where a wireless broadcast made from a place in the United Kingdom is received and immediately re-transmitted by cable’. It states that the defence at issue before it does not concern section 73(2)(a) and (3) of the CDPA, under which, inter alia, the copyright in the broadcast is not infringed ‘if the re-transmission by cable is in pursuance of a relevant requirement’, but solely section 73(2)(b) and (3) of the CDPA, under which copyright is not infringed ‘if and to the extent that the broadcast is made for reception in the area in which it is re-transmitted by cable and forms part of a qualifying service’.
Taking the view that section 73 of the CDPA should be interpreted in the light of Article 9 of Directive 2001/29, the Court of Appeal (England &Wales) (Civil Division) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘On the interpretation of Article 9 of [Directive 2001/29], specifically of the phrase “this Directive shall be without prejudice [to provisions concerning] in particular … access to cable of broadcasting services”:
(1) Does the quoted phrase permit the continued application of a provision of national law with the scope of “cable” as defined by national law, or is the scope of this part of Article 9 determined by a meaning of “cable” that is defined by EU law?
(2) If “cable” in Article 9 is defined by EU law, what is that meaning? In particular:
(a) Does it have a technologically specific meaning, restricted to traditional cable networks operated by conventional cable service providers?
(b) Alternatively, does it have a technologically neutral meaning which includes functionally similar services transmitted via the internet?
(c) In either case, does it include transmission of microwave energy between fixed terrestrial points?
(3) Does the quoted phrase apply (1) to provisions which require cable networks to retransmit certain broadcasts or (2) to provisions which permit the retransmission by cable of broadcasts (a) where the retransmissions are simultaneous and limited to areas in which the broadcasts were made for reception and/or (b) where the retransmissions are of broadcasts on channels which are subject to certain public service obligations?
(4) If the scope of “cable” within Article 9 is defined by national law, is the provision of national law subject to the EU principles of proportionality and fair balance between the rights of copyright owners, cable owners and the public interest?
(5) Is Article 9 limited to the provisions of national law in force at the date on which the Directive was agreed, the date it entered into force or its last date for implementation, or does it also apply to subsequent provisions of national law which concern access to cable of broadcasting services?’
The Court’s decision:
Article 9 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.