ITV Broadcasting Ltd & Ors v TVCatchup Ltd & Ors, Court of Appeal - Civil Division, March 26, 2015, [2015] EWCA Civ 204

Resolution Date:March 26, 2015
Issuing Organization:Civil Division
Actores:ITV Broadcasting Ltd & Ors v TVCatchup Ltd & Ors
 
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Case No: A3/2013/3073 and 3076

Neutral Citation Number: [2015] EWCA Civ 204

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

INTELLECTUAL PROPERTY

MR JUSTICE FLOYD

HC10C01057

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 26/03/2015

Before:

LADY JUSTICE ARDEN

LORD JUSTICE KITCHIN

and

LORD JUSTICE UNDERHILL

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Between:

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Mr James Mellor QC and Mr Quentin Cregan (instructed by Olswang LLP)

for the Claimants

Mr Martin Howe QC (instructed by Hamlins LLP) for the Defendants

Miss Charlotte May QC and Mr Jaani Riordan (instructed by the Treasury Solicitor)

for the Secretary of State

Mr Tom Weisselberg QC (instructed by Baker & McKenzie) for

Virgin Media Limited

Hearing dates: 21/22 October 2014

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JudgmentLord Justice Kitchin:

  1. There are before the court two appeals from those parts of the judgment of Floyd J (as he then was) given on 18 July 2011 and his consequential order which concern the scope of the defence provided by s.73 of the Copyright, Designs and Patents Act 1988 (``the CDPA''). He held that the defence applies in respect of the retransmission by the defendants (collectively ``TVC'') of so-called qualifying services via the internet to end users within the area of intended reception of those services, including instances where the final leg of the transmission takes place by wi-fi in a domestic situation, but that the defence does not apply where the retransmission is for reception by mobile telephone.

  2. The claimants (collectively ``the broadcasters'') appeal against the first of these findings. They contend that the defence does not extend to internet transmissions and is restricted to transmissions on dedicated cable networks operated by conventional cable programme providers.

  3. TVC appeal against the second of these findings. They argue that the defence extends to a retransmission for reception by mobile telephone.

    The background

  4. TVC operate an internet based live stream service of broadcast television programmes, including broadcasts and films in which the broadcasters own the copyright. As the judge explained, the name TVC is inappropriate as the service provided does not now, although it did in the past, allow users to view programmes other than at substantially the same time as the original broadcasts.

  5. So far as relevant to this appeal, the broadcasters alleged at trial that TVC had infringed the copyright in their films and their broadcasts by communicating these works to the public contrary to, respectively, s.20(1)(b) and s.20(1)(c) of the CDPA.

  6. TVC answered the case of infringement of broadcast copyright in the following ways. First, s.20(1)(c) was invalidly enacted and ultra vires for its introduction by statutory instrument lay outside the power conferred on the Secretary of State by s.2(2)(b) of the European Communities Act 1972 (``the ECA 1972''). It was upon this issue that the judge allowed the Secretary of State for Business, Innovation and Skills to intervene. Second, TVC's activities did not amount to communication to the public within the section. Third, in relation to the retransmission of particular qualifying services, that is to say the terrestrial broadcast channels ITV, Channel 4 and Channel 5, TVC had a defence under s.73(2)(b) and s.73(3) of the CDPA. TVC deployed the same defences to the allegation of infringement of film copyright, save for that based upon the ECA 1972.

  7. The action came on for trial in June 2011 and, in his judgment given on 18 July 2011 ([2011] EWHC 1874 (Pat)), the judge decided as follows, so far as material to this appeal. First, he rejected the submission that s.20(1)(c) was invalidly enacted. He reached the conclusion that it arose out of and was related to the United Kingdom's obligation under Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (``Directive 2001/29'').

  8. The judge then turned to the issue of communication to the public and the scope of s.20 of the CDPA. In this regard he considered it was not clear whether there was a communication to the public when an organisation (here, TVC), acting for its own profit, intervened and retransmitted a broadcast on the internet to members of the public who were in fact already able to access the original signal in their own homes using their own television sets. He therefore referred this issue (together with various other issues which have no bearing on this appeal) to the Court of Justice for guidance.

  9. Finally, the judge dealt with s.73 of the CDPA. The broadcasters deployed various arguments in support of their contention that this provision was of no assistance to TVC, the first two of which the judge rejected and are not pursued on this appeal. The third ran as follows. The defence applies only to retransmission by cable, and cable must be given a narrow interpretation extending no further than is permitted by Directive 2001/29. It does not extend to retransmissions on the internet. Nor does it extend to a retransmission intended for reception by mobile telephone.

  10. As I have indicated, the judge rejected the first part of this argument but accepted the second. He could see no reason why the cabling system inherent in the internet should not be regarded as cable for the purposes of the defence. But he also considered that, in order to take advantage of the defence, the whole or substantially the whole of the retransmission must be by cable. It therefore excluded retransmissions by cable to an antenna and then transmission for reception by mobile telephones. Lastly, he held the defence only extended to retransmission to the area in which it was intended the original broadcast should be received, a qualification which TVC accept upon this appeal.

  11. The Court of Justice answered the various questions referred by the judge in its decision of 7 March 2013 (Case C-607/11, ITV Broadcasting Ltd & ors v TV Catchup Ltd). So far as material, it held that the concept of communication to the public within the meaning of Directive 2001/29 covered the retransmission of works contained in a terrestrial broadcast where the retransmission was made by an organisation other than the original broadcaster and by means of an internet stream made available to subscribers of that other organisation who might receive it upon logging on to its server. This was so even though those subscribers were within the area of reception of the terrestrial broadcast and might lawfully receive it on their television sets.

  12. The matter was then listed for further hearing before the judge. On 7 October 2013 he made an order which included declarations to the effect that:

    i) TVC's challenge to the vires of s.20(1)(c) of the CDPA failed;

    ii) TVC had infringed the broadcasters' film and broadcast copyrights by streaming to members of the public (a) various channel services broadcast by one of more of the broadcasters, such services not being qualifying services within the meaning of s.73 of the CDPA; (b) streams of ITV, Channel 4 and Channel 5 (such services being qualifying services within the meaning of s.73 of the CDPA) to mobile devices via any mobile telephone network; (c) streams of ITV, Channel 4 and Channel 5 to users situated out of the region to which the original broadcasts were made; but,

    iii) to the extent that TVC had streamed ITV, Channel 4 or Channel 5 to members of the public by cable (which included transmission via the internet but did not include transmission to mobile devices via any mobile telephone network) and to users situated in the region to which the original broadcasts were made, it had not infringed the broadcasters' copyright by reason of the defence contained in s.73 of the CDPA.

  13. The judge also made a declaration that it was not possible to interpret s.73 so as to be compatible with Article 5(3)(o) of Directive 2001/29 which, so the broadcasters submitted, was the only provision of that directive which could provide a proper basis for such a defence.

  14. The parties now appeal against the judge's findings and order so far as it concerns the scope of the s.73 defence and its application in the circumstances of this case, and they do so with his permission. On 16 January 2014 I gave the Secretary of State for Business, Innovation and Skills (``the Secretary of State'') permission to intervene. His interest in these issues is clear and is confirmed by the declaration of incompatibility made by the judge. On 30 June 2014 Sir Timothy Lloyd granted Virgin Media Limited (``Virgin Media'') permission to intervene on the basis that it operates a national cable network providing retransmitted digital cable television services and relies upon s.73 to prevent its retransmissions from being an infringement of copyright. It maintains that a significant part of its business depends upon the outcome of this appeal.

    The issues on the appeal - an outline

  15. The broadcasters have been represented upon this appeal by Mr James Mellor QC and Mr Quentin Cregan. As I have indicated, Mr Mellor submits that the judge wrongly interpreted the word ``cable'' in s.73 of the CDPA as meaning ``wire'' and fell into error in making the declaration referred to in paragraph 12(iii) above for, upon its proper interpretation, s.73 refers only to dedicated cable networks operated by conventional cable programme providers. Retransmissions over the internet are therefore excluded. In support of this contention he relies upon the legislative history of this provision and upon what he says was the manifest intention of the legislature to implement the terms of Directive 2001/29. He also submits that the whole of the retransmission in issue must be by cable as so understood (though he takes no point on the finding of the judge that the defence does extend to...

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