Nora Sleeth is a JD candidate at Osgoode Hall Law School.
Justice Floyd of the United Kingdom High Court has provisionally ruled in TV Catchup (TVC) that live Internet streaming of television programs is subject to copyright law. The question has been referred to the European Court of Justice (ECJ) for affirmation.
TV Catchup is a live streaming service that allows viewers to access television programs on their computers or smart phones. Users are required to register with the site to ensure that they are only accessing television that is already available through their existing television licence. TVC is funded by a mixture of advertisements that are the same as those shown during the original broadcast and also those that are unique to TVC.
Copyright in the categories of broadcast and film can be infringed by “communication of the works to the public” or “by making or authorizing the making of transient copies”. TVC’s live streaming service was challenged by broadcasting companies IVT, Channel 4, and Five. The broadcasters claimed that they had copyright over the material being streamed by TVC.
In its defence, TVC claimed that it was not communicating works to the public, but was merely providing a new technological means through which users may view television programs. This technical advancement, according to TVC, provides the public with another option for television viewing and does not attract any additional viewers. Further, TVC attempted to rely on the Copyright, Designs and Patents Act (CDPA), which states that temporary copies without independent significance do not constitute a copyright infringement.
Justice Floyd did not agree with TVC’s arguments, finding that TVC did communicate television programs to the public. The CDPA specifies that unlawful communication to the public occurs when a broadcast is made available to the public “from a place and at a time individually chosen by them”. With regard to TVC’s argument that it was providing a new technical means through which television is accessed, Justice Floyd disagreed. He found that TVC provided an alternative to conventional television viewing that was in direct competition with the broadcasters.
Floyd’s reasoning is supported by TVC’s for profit nature and it’s use of advertisements not used by the broadcasters. These factors indicate that TVC is attempting to attract its own audience. Finally, the EU’s Information Society Directive holds that “broadcasters’ copyright rights apply broadly to all communications to the public” that are not made by the rights-holder. Floyd’s decision is not to be affirmed until the ECJ hears the case. The full reference may be found here.
I find this case interesting in light of a previous blog I have written for the IPilogue discussing the process of stream ripping. Through various websites, Internet users can make a copy of media that is streamed over the Internet. While the legality of TVC’s technology is more ambiguous, stream ripping is clearly a violation of copyright. Both technologies, however, illustrate the controversies created by new technical developments and the impact they have on copyright law.