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The law has caught up with TVCatchup

Written by Samuel O'Toole on 06 March 2017

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TVCatchup, for almost ten years, has been offering consumers TV content broadcast by ITV, Channel 4 and Channel 5, only slight issue being that they did not have permission from the rightsholders.  

Although, who needs permission form rightsholders when section 73 of the Copyright Designs and Patents Act 1988 provides that copyright is not infringed in a wireless broadcast when a third party re-transmits by cable the same broadcast in the same area.

The legislation was designed in the era of the development of cable infrastructure, as such its aim was to help and allow the infrastructure to grow. Nonetheless, TVCatchup made good of this defence and exploited it for a number of years.

Needless to say the broadcasters did not feel the same way. They took TVCatchup to court under section 20 of the 1988 Act, which provides that copyright is infringed when it is communicated to the public.

The High Court believed that TVCatchup was in the right. However, the broadcasters were not content and took the matter to the Court of Appeal. They argued that internet streaming services were not entitled to the protection in section 73 of the 1988 Act that was intended for cable operators.

Clarification by the Court of Justice of the European Union was sought by the Court of Appeal due to the complexities in the case. It was suggested that section 73 of the 1988 Act should be read in line with Article 9 of Directive 2001/29, with the Court of Appeal asking if “cable” could be interpreted to mean internet services.

The Court of Justice of the European Union handed down its judgement in which it was explained that “communication to the public” must be interpreted broadly and that a retransmission by way of an internet stream constitutes a communication to the public.  

Furthermore, the Court found that Article 9 of Directive 2001/29 does not allow for “national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet.”

TVCatchup’s section 73 defence is effectively no more following this decision. However, there is one more plot twist in this episode. The Digital Economy Bill that is going through its journey in Parliament contains an amendment that is tabled to remove section 73. During a consultation the government came to the conclusion that it was not to apply to internet services.

It appears that TVCatchup and section 73 of the Copyright Designs and Patents Act 1988 will both be killed of in this season finale.  

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