Advocate-General supports broadcasters in long-running TVCatchup saga

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

The dispute between streaming website TVCatchup ("TVC") and three UK television broadcasters (ITV, Channel 4 and Channel 5) has been running for 7 years now, with no immediate end in sight. Our earlier reports on these proceedings, in which Olswang acts for all three broadcasters, can be found here  .

Following the second referral to the CJEU in this dispute, the Advocate General's Opinion has just been released. An Opinion is frequently released some months in advance of the Court's judgment. Whilst the Opinion is not binding, final judgment tends to follow the Opinion in 60-70% of cases.

In this case, the Advocate General has opined firmly in favour of the broadcasters, strongly preferring their proposed answers to the questions posed by the Court of Appeal in 2015, to the arguments raised by TVC and the UK Government.

Background

TVC's service permits users to receive live internet streams of free-to-air satellite broadcasts, monetising its service through advertising. TVC pays nothing to copyright-owners or broadcasters to use the streams (unlike the broadcasters themselves, who must pay for each method of exploitation when they license in content). In March 2013, the CJEU confirmed that on the basis of Article 3 of Directive 2001/29/EC ("InfoSoc Directive"), the retransmission of satellite broadcasts via the internet without the copyright holder's consent would constitute an unlawful "communication to the public".

Back at the High Court and subsequently the Court of Appeal, the remaining question arose whether TVC could rely upon a defence under Section 73 of the Copyright, Designs and Patents Act 1988 ("CDPA"). In respect of certain “Public Service Broadcast” channels (namely, ITV1, Channel 4 and Channel 5, but not digital channels), Section 73 provides that the immediate retransmission of a broadcast via cable does not infringe copyright, if the broadcast and the cable reception area are the same.

Before the Court of Appeal, questions arose over the compatibility of Section 73 with the InfoSoc Directive. Article 9 provides that the InfoSoc Directive is without prejudice to certain provisions including those concerning "access to cable of broadcasting services”. TVC argued that 'cable" within Article 9 should be construed widely so as to include the internet (as if “cable” is synonymous with “wire”), rather than a technologically specific meaning, being only a traditional cable service (in the UK, Virgin Media).

In his Opinion, Advocate General Øe concluded that Section 73 does notother fall within Article 9. His view is that Section 73 is an attempt to create an exception to the Article 3 exclusive right of communication to the public. By contrast, Article 9 only relates to '' provisions, i.e. not those already harmonised by the InfoSoc Directive. Likewise, the Advocate General rejected the UK Government’s other arguments supporting the notion that Section 73 was legitimised by Article 9.

This conclusion meant there was strictly no need to further interpret the phrase “access to cable of broadcasting services” in Article 9. However, AG Øe did so anyway, with further good news for broadcasters: in his view, “access to cable” means “access by a consumer to a cable network”, as opposed to access to broadcast content.

Finally, AG Øe rejected TVC’s arguments that "cable", within this section, should include the internet. At the time of drafting the Directive, opined AG Øe if the EU legislature had intended a wider, technologically-neutral meaning, they would have used a more general term, or at least indicated that "cable" included other technologies such as the internet.

Impact of the Opinion

The Opinion could not have been much more positive for the broadcasters. That said, the Opinion is non-binding, and the broadcasters will have to remain hopeful that the CJEU judgment follows suit.

Meanwhile, recent legislative developments in the UK have arguably lessened the importance of the outcome of this case to the industry. The Government recently released the Digital Economy Bill, which now includes a proposal to repeal Section 73, given it was introduced to support now obsolete technologies. The repeal of the Section 73 defence has long been lobbied for by the broadcasting industry, which is no doubt keeping a close eye on the fate of the Bill under the eyes of the new Government.

This firm will report again on the final CJEU judgment once it is released in a few months’ time.

For any questions in the meantime, please contact Joel Vertes or Paul Stevens.