[authors: Jonathan Salt and John Cloke]
The High Court has ordered streaming service TV Catchup (TVC) to drop over 20 channels aired by ITV, Channel 4 and Channel 5 and pay eighty per cent of the broadcasters’ costs of the action, following a decision of the Court of Justice of the European Union (the CJEU), discussed in an earlier article on this blog.
After the CJEU’s finding that the activities of TVC constituted “communication to the public”, the key remaining issue was the extent to which the UK-specific defence under section 73 of the Copyright Designs and Patents Act 1988, which permits the retransmission of “qualifying services” (such as ITV, Channel 4 and Channel 5) by cable, might apply to the internet streaming services of TVC.
As expected, the order effectively confirms that the defence does not cover the additional digital services of ITV, Channel 4 and Channel 5. This means that channels like E4, Film 4, ITV2 and 5USA can no longer be made available by TVC.
However, the order leaves open the most interesting remaining aspect of the case – whether section 73 applies to the internet. Under the terms of the order, TVC is (for now) able to stream ITV, Channel 4 and Channel 5 to members of the public via the internet (but not via mobile telephone networks), based on the judge’s view in his original decision that the internet would be covered by section 73. Yet the order expressly grants the broadcasters the right to appeal this finding. Assuming an appeal is pursued, it will be interesting to see how the broadcasters fare, as there remain good reasons for treating the internet as distinct from cable.
In particular (and as the judge remarked in his original judgment), for the defence to be available, the whole of the transmission must be by cable. In the case of internet transmissions, that is only really the case where a computer is physically attached to a phone line or network connection and would not be the case if the computer (or any other internet-enabled device, such as a smartphone or tablet) is accessing the internet via Wi-Fi or, indeed, a mobile telephone network.
Given the fact that the internet is increasingly being accessed by many types of device by non-wired means (and so cannot be viewed as an exclusively “wired” system), if an appeal is pursued there is significant potential for the Court of Appeal to reach a conclusion that the internet can be distinguished from “cable”, or at least, that the section 73 defence only applies in the limited circumstances where a device is physically connected to a wired internet connection. Either conclusion would much reduce the potential for reliance on section 73 by services like TVC.
The reality, however, is that section 73 was never intended to capture the internet and, to the extent it does, it is an accident. A legislative solution to correct this situation would ultimately be preferable.