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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> ITV Broadcasting Ltd & Ors v TV Catch Up Ltd  EWHC 3063 (Ch) (25 November 2010)
Cite as:  FSR 16,  EWHC 3063 (Ch),  Bus LR 964
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Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
|(1) ITV BROADCASTING LIMITED
(2)ITV 2 LIMITED
(3)ITV DIGITAL CHANNELS
(4)CHANNEL 4 TELEVISION CORPORATION
(5)4 VENTURES LIMITED
(6)CHANNEL 5 BROADCASTING LIMITED
|- and -
|TV CATCH UP LIMITED
Anthony Boswood QC and Madeleine Heal (instructed by Hamlins LLP) for the Defendant
Hearing dates: 17 November 2010
Crown Copyright ©
MR. JUSTICE KITCHIN :
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.
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."
(a) to copy the broadcast (see section 17);
(b) to issue copies of the broadcast to the public (see section 18);
(c) to communicate the broadcast to the public (see section 20).
"Infringement by communication to the public
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."
"20. The broadcasting of the work or its inclusion in a cable programme service is an act restricted by the copyright in –
(a) a literary, dramatic, musical or artistic work;
(b) a sound recording or a film, or
(c) a broadcast or cable programme."
"1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
(a) for performers, of fixations of their performances;(b) for phonogram producers, of their phonograms;(c) for the producers of the first fixations of films, of the original and copies of their films;(d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.
3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article."
"(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.
(10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as 'on-demand' services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment."
"(23) This Directive should harmonise further the author's right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.
(24) The right to make available to the public subject-matter referred to in Article 3(2) should be understood as covering all acts of making available such subject-matter to members of the public not present at the place where the act of making available originates, and as not covering any other acts."
"36. It follows from the 23rd recital in the preamble to Directive 2001/29 that "communication to the public" must be interpreted broadly. Such an interpretation is moreover essential to achieve the principal objective of that Directive, which, as can be seen from its ninth and tenth recitals, is to establish a high level of protection of, inter alios, authors, allowing them to obtain an appropriate reward for the use of their works, in particular on the occasion of communication to the public."