England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY

		Claim No: HC10C01057 Royal Courts of Justice Strand, London, WC2A 2LL
		25/11/2010

MR. JUSTICE KITCHIN :

Introduction

1. The claimants are all well known broadcasters and in this action they allege that the defendant has infringed the copyrights in their broadcasts by communicating those broadcasts to the public by electronic transmission. The defendant maintains that the claimants have no real prospect of succeeding in the claim and there is no other reason why the case should be disposed of at trial. Accordingly it has applied for summary judgment under Part 24.

Background

2. The claimants are responsible for the transmission of a wide range of television programmes on major television channels. There is no dispute that these transmissions are broadcasts within the meaning of section 6 of the Copyright Designs and Patents Act 1988 ("the Act"), that copyright subsists in them and that such copyright belongs to the claimants.
3. The defendant operates a website at www.tvcatchup.com which allows members of the public to watch live UK television, including the claimants' channels, on their computers, iPhones and games consoles. Any member of the public wishing to access the service must first become a member. He can then select one of over 50 channels by pressing on the appropriate icon, whereupon he is taken to a new screen on which the defendant provides a stream of the programme being broadcast on that channel. There is a slight delay before the member sees the programme because the defendant first shows one of its own advertisements. This is how it makes its money.
4. For the purposes of this application, there is no dispute that the defendant's service operates in the following way:

i) ordinary domestic aerials are set up to receive UK free-to-air broadcasts;

ii) these aerials are connected to a cluster of servers, each containing a television tuner card which acts as a decoder; this converts the broadcast signal into an audio-visual data stream which is then sent to second cluster of servers;

iii) the second cluster of servers convert the data stream into a format (called a flash stream) suitable for delivery by the internet; the flash stream is sent to a third set of servers called the streaming servers;

iv) when a member clicks on a channel on the defendant's website, his computer or other device connects to one of the streaming servers and receives a flash stream of all the programming on the channel he has selected.

Legislative framework

5. Section 6 of the Act (as amended by the Copyright and Related Rights Regulations 2003 (SI 2003/2498)("the 2003 Regulations") defines a broadcast in these terms:

"Broadcasts

6-(1) In this Part a "broadcast" means an electronic transmission of visual images, sounds or other information which—

(a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or

(b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

and which is not excepted by subsection (1A); and references to broadcasting shall be construed accordingly.

(1A) Excepted from the definition of "broadcast" is any internet transmission unless it is—

(a) a transmission taking place simultaneously on the internet and by other means,

(b) a concurrent transmission of a live event, or

(c) a transmission of recorded moving images or sounds forming part of a programme service offered by the person responsible for making the transmission, being a service in which programmes are transmitted at scheduled times determined by that person."

6. Under section 16 of the Act, the owner of the copyright in a broadcast has, in accordance with the following provisions of Chapter II, the exclusive right to do certain acts in the United Kingdom, namely:

(a) to copy the broadcast (see section 17);

(b) to issue copies of the broadcast to the public (see section 18);

(c) to communicate the broadcast to the public (see section 20).

7. These proceedings are concerned with the alleged communication of the claimants' broadcasts to the public and, in that regard, section 20 (as substituted by the 2003 Regulations) reads:

"Infringement by communication to the public

20- (1) The communication to the public of the work is an act restricted by the copyright in—

(a) a literary, dramatic, musical or artistic work,

(b) a sound recording or film, or

(c) a broadcast.

(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—

(a) the broadcasting of the work;

(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them."

8. By contrast, the protection conferred by the former section 20 was limited to the broadcasting of the work or its inclusion in a cable programme service:

"20. The broadcasting of the work or its inclusion in a cable programme service is an act restricted by the copyright in –

(a) a literary, dramatic, musical or artistic work;

(b) a sound recording or a film, or

(c) a broadcast or cable programme."

9. Section 20 implements Article 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 ("the Information Society Directive"). This reads:

"1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

(a) for performers, of fixations of their performances;

(b) for phonogram producers, of their phonograms;

(c) for the producers of the first fixations of films, of the original and copies of their films;

(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article."

10. The general purpose and importance of these and other rights contemplated by the Information Society Directive is evident from recitals (9) and (10):

"(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.

(10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as 'on-demand' services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment."

11. Guidance as to how these rights should be understood is provided in recitals (23) and (24):

"(23) This Directive should harmonise further the author's right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.

(24) The right to make available to the public subject-matter referred to in Article 3(2) should be understood as covering all acts of making available such subject-matter to members of the public not present at the place where the act of making available originates, and as not covering any other acts."

12. The European Court of Justice has also reiterated that the right of communication to the public must be interpreted broadly in Case C-306/05 Sociedad General de Autores v Editores de Espana (SGAE) v Rafael Hoteles SA [2006] ECR I-11519 at [36]:

"36. It follows from the 23rd recital in the preamble to Directive 2001/29 that "communication to the public" must be interpreted broadly. Such an interpretation is moreover essential to achieve the principal objective of that Directive, which, as can be seen from its ninth and tenth recitals, is to establish a high level of protection of, inter alios, authors, allowing them to obtain an appropriate reward for the use of their works, in particular on the occasion of communication to the public."

Summary judgment

13. Mr Mellor QC, who has appeared on this application on behalf of the claimants, accepts that the defendant's transmissions are not themselves broadcasts within the meaning of section 6 of the Act. He also accepts that the defendant has not made the claimants' broadcasts available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them. But he contends that the defendant's service nevertheless involves communication of the claimants' broadcasts to the public by electronic transmission and so falls within the scope of section 20 of the Act.
14. Mr Boswood QC, who has appeared on this application on behalf of the defendant, submits that this contention has no real prospect of success and accordingly I should strike out the claim and give judgment for the defendant. For the purposes of this application he accepts that the defendant has communicated the programming content of the claimants' broadcasts to the public and that it has done so by electronic means. But, he continues, in order to infringe the copyright in a broadcast under section 20 of the Act, the defendant's transmission must itself be a broadcast within the meaning of section 6. The claimants have accepted that defendant's transmissions are not broadcasts and so, he says, the claim must fail.
15. In addressing this submission it is convenient to begin with Article 3 of the Information Society Directive. As I have explained, it is clear that the right of communication of a work to the public must be interpreted broadly so as to cover all communication to the public not present where the communication originates. It includes, but is not limited to, broadcasting and access on demand.
16. The United Kingdom adopted the measures contained in Article 3(1) in 2003. Section 20 of the Act now confers on the owner of the copyright in each of the kinds of work identified in subsection (1), the right to communicate any such work to the public. Consistently with Article 3 of the Information Society Directive, subsection (2) defines communication to the public as communication to the public by electronic transmission. The definition then identifies two specific ways in which such communication may take place, namely: (a) broadcasting the work and (b) making the work available by electronic transmission on demand. But I do not read the definition in subsection (2) as being limited to these forms of communication. To the contrary, it says in terms that it includes them. In my judgment it also covers all other acts which constitute communication to the public of the work by electronic transmission.
17. Mr Boswood nevertheless submits that one cannot communicate a broadcast other than by means of a mode of delivery which has the characteristics of a broadcast. These characteristics include transmission for simultaneous reception by members of the public, that is to say "one to many". By contrast, he says, the defendant's transmission is not "one to many" but rather "one to one". So, whatever may be the scope of section 20 in relation to other categories of work, in the case of a broadcast it is limited to the single restricted act of broadcasting.
18. I am unable to accept this argument which, in my judgment, confuses the protected work and the restricted act. They are different. The protected work, the broadcast, is the transmission of visual images, sounds and other information for reception by or presentation to members of the public. The restricted act is the communication to the public by electronic transmission of all of those images, sounds and other information. In the same way, section 17 of the Act prohibits the making of a copy of a broadcast and section 18 prohibits the issuing of copies of the broadcast to the public. There is no requirement that the copy itself must be a broadcast. Indeed, it may be no more than a photograph (section 17(4)).
19. There was some dispute between the parties as to whether the entire foundation of section 20 of the Act lies in Article 3 of the Information Society Directive. But they were agreed that this has no bearing on the short point I have to decide, namely whether the fact that the defendant's transmissions are not broadcasts is necessarily fatal to the claim. In my judgment it is not. For the reasons I have given, I am satisfied that the claim does have a real prospect of success. Accordingly, this application must be dismissed.