CASE LAW SUMMARY
Court of Justice of the European Union - 7 March 2013 - Case C-607/11 - "ITV Broadcasting Ltd. et al versus TVCatchup Ltd."
In November 2011, the Court of Justice of the European Union (CJEU) was seized with a request for a preliminary ruling by the High Court of Justice (England & Wales) (Chancery Division) of the United Kingdom.
The main proceedings opposed a number of British broadcasters (hereafter the "broadcasters") and TVCatchup Ltd. (hereafter "TVC").
The broadcasters owned copyrights under the British law of 1988 to programmes and films which they broadcast on television. This broadcasting was "free-to-air", meaning that all British citizens with a television set and a valid television license had access to these programmes and films.
TVC retransmitted televised programmes over the Internet, in particular certain "free-to-air" programmes belonging to the broadcasters, quasi-simultaneously to the televised broadcasts. Retransmissions offered on the Internet were free. TVC's revenue comes from advertising.
The broadcasters accused TVC of retransmitting televised programmes without the authorisation of the copyright owners and, more precisely, of having engaged in "communication to the public" of protected works without authorisation, within the meaning of British laws (Article 20 of the Law of 1988) and Directive 2001/29/EC (Article 3(1)).
The broadcasters launched a legal action for infringement against TVC.
TVC argued in its defence that its services only targeted individuals living in the United Kingdom who had a valid television license, meaning that the individuals who had access to the shows via TVC's Internet services also had access thereto via broadcasts.
The British Court stayed the action and asked the CJEU whether the concept of "communication to the public", subject to the authorisation of copyright owners within the meaning of the directive, applied to the present case, in which:
- The authors of the protected works authorise free terrestrial broadcasting on all or part of the territory of a Member State;
- An entity other than the original broadcaster offers individuals who have legal access to the original broadcast receipt of content via an Internet stream.
In its decision of 13 March 2013, the CJEU answered that the retransmission proposed by TVC constituted "communication to the public", subject to the authorisation of copyright owners within the meaning of the directive, to the extent that it relates to protected works - included in a terrestrial television broadcast - and that this retransmission is provided by an entity other than the original broadcaster via different technical means (Internet stream), even though the users of TVC services also have lawful access to the works via the original broadcast.
Contact: Gwénaël Toussaint