Court of Appeal sticks with CJEU jurisprudence on communication to the public (for now): TuneIn v Warner

In its recent decision in TuneIn Inc v Warner Music UK Limited and Sony Music Entertainment UK Limited [2021] EWCA Civ 441, the Court of Appeal has rejected arguments that the UK should depart from the CJEU’s jurisprudence on what constitutes a “communication to the public”. In its unanimous judgment, the Court of Appeal upheld Birss J’s High Court decision that radio aggregation platform TuneIn was liable for copyright infringement, although overturned a minor part of the original judgment (discussed below).

Background

The Defendant, TuneIn, operated an online platform called “TuneIn Radio”, which via a website or various apps allowed users in the UK to easily access around 70,000 music stations from around the world broadcast on the internet. TuneIn Radio connected the users to third party radio station streams via links, although the page on the user’s screen remained on the TuneIn Radio page. The underlying stream URL of the radio station was not obviously visible. The stations on TuneIn Radio were either licensed in the UK, licensed for a territory other than the UK, not licensed in the UK or elsewhere or were premium radio stations. Until April 2017, TuneIn offered a premium service in which users could record content, allowing them amongst other things to skip advertisements.

The Claimants, Warner Music and Sony Music, alleged that TuneIn had committed the restricted act of communication to the public by allowing access to radio stations from around the world that were not licensed for reproduction in the UK. The Claimants were successful at first instance. While the focus of this article is primarily on the continued use of the CJEU’s jurisprudence on communication to the public, TuneIn raised a variety of grounds of appeal. It cited that, for example, TuneIn Radio simply provides hyperlinks to content freely available and therefore is no different to a search engine. It also criticised Birss J’s reasoning and conclusions on a number of legal issues such as targeting and conflation of the reproduction right with communication to the public.

Targeting

The Court of Appeal noted that, to prove infringement, the Claimants were required to establish (i) the commission by TuneIn of that restricted act (ii) in the UK. The CJEU previously held in Donner that the relevant infringing act must be targeted at that State, and that mere accessibility of a website from a Member State is insufficient to give rise to infringement.

Birss J, in his High Court judgment, summarised the legal principles around targeting, in particular noting that “depending on how a website is organised, not all pages are necessarily targeted at the same place(s)”. TuneIn, in its appeal, argued that while the platform was targeted at the UK as a whole, the foreign stations targeted their local, overseas audience. Arnold LJ, in the leading judgment, rejected this argument, stating that the fact that “foreign stations account for a small percentage of listener hours [is] irrelevant to this question”.

Communication to the public

TuneIn submitted that the Court of Appeal should deviate from CJEU case law on communications to the public and hyperlinking. Having summarised the existing jurisprudence on a communication to the public and noted that any change would only have effect from 1 January 2021, Arnold LJ held that the UK should not depart from the CJEU’s jurisprudence. He stated, in reaching this decision, that interpreting the concept of communication to the public was problematic due to (i) the lack of legislative guidance and (ii) the conflict between the territorial component of copyright and the global nature of the internet. He reasoned, however, that the “CJEU has unrivalled experience in confronting this issue” and “has developed and refined its jurisprudence over time”. He argued that there had been no change in domestic legislation and no change to the international legislative framework, and stated that a departure from the existing jurisprudence would “create considerable legal uncertainty”.

Consideration of CJEU authorities

As part of its appeal, TuneIn raised a number of arguments which were eventually rejected by the Court of Appeal. In particular, TuneIn took issue with Birss J’s reconciliation of Svensson and Renckhoff. TuneIn’s strongest argument, according to Arnold LJ, was the reference to the CJEU’s comments in VG Bild that “the only way in which a right holder can limit its consent is by means of effective technological measures”. However, Arnold LJ held that VG Bild must be understood in context, concluding that it was a case concerning the entitlement of right holders to insist on technical measures to restrict access when granting mandatory licences. He therefore held that Birss J had made no material error in reconciling Svensson and Renckhoff.

Recording function as a different technical means

In the High Court, TuneIn were found to infringe copyright in all four categories of music stations offered on its platform, even those actually licensed in the UK. Birss J held that including the recording function on TuneIn’s “Pro” app constituted a different technical means to the original communication and therefore there was a communication to the public, regardless of whether there was a new public. TuneIn argued that the judge had conflated the reproduction right and the communication to the public. Arnold LJ agreed, stating that the option to record the stream had no impact on the act of communication.

Comment

The unanimous decision of the judges to stick with the CJEU’s jurisprudence on the concept of communication to the public shows that any wholesale departure from established CJEU principles will be reserved for special occasions. Arnold LJ, supported in this by the other judges, reiterated the limited nature of the Court of Appeal’s and Supreme Court’s new-found powers to depart from lower court judgments, noting that “the House of Lords and the Supreme Court have consistently stated that [their power to override their own prior rulings] is a power to be exercised with great caution” and that the same threshold is to be applied here (as provided in section 6(5) of the European Union (Withdrawal) Act 2018). Many critics of the CJEU’s muddled jurisprudence on communication to the public will regret this conservative approach.

Rose LJ and Vos MR notably also distanced themselves from endorsing Arnold LJ’s approach to summarising the CJEU jurisprudence on communication to the public which was not directly relevant on the facts. Both judges commented that such summaries rarely last for long, with Rose LJ flagging that courts and tribunals in the coming years should not feel hindered by the description of pre-existing retained EU law in a judgment if a later judgment of the CJEU seeks to revisit a certain area of law.

Co-authored by Jack Rigelsford

Cases

TuneIn Inc v Warner Music UK Limited and Sony Music Entertainment UK Limited [2021] EWCA Civ 441 (Arnold LJ, Rose LJ, Vos MR)

Warner Music UK Ltd and Sony Music Entertainment UK Ltd v TuneIn Inc. [2019] EWHC 2923 (Ch) (Birss J)

Case 5-/11 Donner [EU:C:2012:370]

Case C-466/12 Svensson v Retriever Sverige AB [EU:C:2014:76]

Case C-161/17 Land Nordrhein-Westfalen v Renckhoff [EU:C:2018:634]

Case C-392/19 VG Bild-Kunst v Stiftung Preußischer Kulturbesitz [EU:C:2021:181]