ITV and others -v- TV Catch Up Limited  EWHC 3063 (Ch)
Written by Paul Bicknell on 12 January 2011« Return to Reading Room
The Claimants claimed that the Defendant had infringed their copyright in their broadcasts by communicating the same to the public by electronic transmission. The Defendant submitted by application under CPR 24 that the Claimants have no real prospect of succeeding at trial and that the court should strike out the Claimants' claim.
The Defendant conducts its business through the website www.tccatchup.com <http://www.tccatchup.com> which allows users to view live television which included the Claimants' channels and programs. Users access the material by membership, and once a member, have a choice of over 50 channels, these programs are streamed. The Defendant plays advertisements on its screens to generate income.
The court highlighted that in the application there was no dispute that the Defendant's service operates as follows:
"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."
By section 6 of the Copyright Designs and Patents Act 1988 (as amended) ("the Act") defines a broadcast as follows:
"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."
The Claimants' case is based on section 20 of the Act which reads:
"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."
A broad interpretation must be applied to the right to communicate work(s) to the public: Case C-306/05 Sociedad General de Autores -v- Editores de Espana v Rafael Hoteles SA  ECR I-11519.
Submissions on summary judgment
The Claimants accepted that the Defendant's transmission was not a broadcast within the meaning of the Act. It was also accepted that the user did not access the transmission by a time individually chosen by them. However, the Claimant submitted that the Defendant's use falls within section 20 of the Act.
The Defendant accepted that it has communicated the Claimants' programs to the public by electronic means but to fall within section 20 of the Act the broadcast must first fall within section 6 of the Act and also by reason of the Claimants' admission that the Defendants' transmission does not fall within section 6 the claim "must fail". Accordingly The Defendant closed with the averment that Claimants' case has no real prospect of succeeding at trial and that the Claimants' case should be struck out.
The Judge was of the view that taking into account the requirement to interpret the communication rule wildly that section 20(2) of the Act does not limit the communication rule to that subsection the Judge stated: "...it covers all other acts which constitute communication to the pubic of the work by electronic transmission."
The Defendant's argument that its transmission is not a broadcast because of its "mode of delivery". The Defendant submitted that its transmission is "one to one" not "one to many". The Judge disagreed and went on to find that:
"...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)). (Emphasis added).
"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."
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