Broadcasters victorious in claim against TVCatchup: injunction obtained in respect of 21 channels

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Case HC10 C01057: ITV, Channel 4 and Channel 5 vs TVCatchup Limited

On 7 October 2013, the case brought by ITV, Channel 4 and Channel 5 (the "Claimants") (represented by Olswang), against TVCatchup Limited ("TVCatchup") returned to the High Court, following the recent reference made to the CJEU on 7 March 2013. 

In March 2013, the CJEU had delivered a resoundingly clear judgment that the streaming of the Claimants' channels by TVCatchup would (subject to any national defences) amount to a communication to the public. On 7 October, the High Court had the task of implementing the answer given by the CJEU.

Lord Justice Floyd, sitting as a Judge of the High Court, granted a detailed Order (which can be found here), in which held TVCatchup to be infringing certain of the Claimants' broadcasts and films by unlawfully communicating those works to the public. He imposed an injunction on TVCatchup from continuing to infringe the Claimants' rights by such re-transmission.

In particular, TVCatchup were found to infringe:

• All and any streams of 21 digital channels broadcast by the Claimants (being ITV2, ITV3, ITV4, E4 , CITV, More4, Film4, 4seven, 4music, 5USA, 5* and all of the +1 channels);
• Any streams of ITV, Channel 4 and/or Channel 5 to mobile devices via any mobile telephone network (i.e. via 3G or 4G);
• Any streams of ITV, Channel 4 and/or Channel 5 to users situated out of the region to which the original broadcast was made.

TVCatchup were held not to infringe Claimants' rights in relation to streaming of its public service broadcaster channels (namely ITV, Channel 4 and Channel 5), which are deemed to be a 'qualifying service' under Section 73 of the Copyright Design, and Patents act 1988 ("CDPA") - but only to the limited extent that those services were streamed over the internet and "within region". TVCatchup may no longer stream such services to mobile phone networks (i.e. by way of 3G or 4G), and the broadcasts may not be streamed out of region.

Mr Justice Floyd named the Claimants the overall winners of the case, and awarded the Claimants 80% of their costs, of which TVCatchup had to pay £200,000 on account (i.e. upfront). As a consequence of the case, TVCatchup have since removed the 21 digital channels from their service. They have also ceased streaming ITV, Channel 4 and Channel 5 over mobile networks.

Both parties have since appealed in relation to the narrow defence of the application of Section 73 CDPA. The appeals have been conjoined and are likely to be heard in mid-2014.