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England and Wales High Court (Patents Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> ITV Broadcasting Ltd & Ors v TVcatchup Ltd & Anor [2011] EWHC 2977 (Pat) (14 November 2011) URL: https://www.bailii.org/ew/cases/EWHC/Patents/2011/2977.html Cite as: [2012] ECDR 5, [2011] EWHC 2977 (Pat) |
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CHANCERY DIVISION
Rolls Building, London, EC4A 1NL |
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B e f o r e :
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(1) ITV BROADCASTING LIMITED (2) ITV 2 LIMITED (3) ITV DIGITAL CHANNELS LIMITED (4) CHANNEL 5 BROADCASTING LIMITED (5) ITV STUDIOS LIMITED |
Claimants |
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- and - |
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TVCATCHUP LIMITED |
Defendant |
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- and - |
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THE SECRETARY OF STATE FOR BUSINESS INNOVATION AND SKILLS |
Intervenor |
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Hearing date: 21 October 2011
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Crown Copyright ©
Mr Justice Floyd:
Reference on communication to the public?
"whether Directive 93/83 must be interpreted as requiring a satellite package provider to obtain authorisation from the right holders concerned for a communication to the public of works that is effected in the course of the direct or indirect transmission of television programmes, such as the transmission at issue in the main proceedings."
"That said, the indivisibility of such a communication, within the meaning of Article 1(2)(a) and (c) of Directive 93/83, does not however signify that the intervention of the satellite package provider in that communication can occur without the authorisation of the right holders concerned."
"he makes the protected works accessible to a new public, that is to say, a public which was not taken into account by the authors of the protected works within the framework of an authorisation given to another person"
"However, that authorisation does not have to be obtained by the person concerned if his intervention when the communication to the public is carried out is limited, in accordance with recital 27 in the preamble to Directive 2001/29, to the mere provision of physical facilities for enabling or making the communication."
i) The fact that the person intervening encrypts the communication or provides a key, and provides corresponding decoding devices, thus enabling the link to be established between the broadcasting organisation and the subscribers (see [78]);
ii) The intervention is one without which the subscribers would not be able to receive the programmes, although physically within the area. So the satellite package provider makes the work accessible to a public which is additional to the public targeted by the broadcasting organisation concerned (see [79]);
iii) The intervention is an autonomous service performed for profit (see [80]);
iv) The satellite provider provides a package of channels, not just those of one organisation (see [81]).
" … it should be borne in mind that Directive 93/83 is not the only European Union instrument in the field of intellectual property and that, in view of the requirements deriving from the unity and coherence of the legal order of the European Union, the terms used by that directive must be interpreted in the light of the rules and principles established by other directives relating to intellectual property, such as, in particular, Directive 2001/29 (see, by analogy, Case C-271/10 VEWA [2011] ECR I-0000, paragraph 27)."
"Does the right to authorise or prohibit a "communication to the public of their works by wire or wireless means" in Article 3.1 of the Directive extend to a case where:
(i) Authors authorise the inclusion of their works in a terrestrial free-to-air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;
(ii) A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party's server and receive the content of the broadcast by means of an internet stream?
Does it make any difference to the answer to the above question if:
(a) The third party's server allows only a "one-to-one" connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?
(b) The third party's service is funded by advertising which is presented "pre-roll" (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or "in-skin" (i.e. within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?
(c) the intervening organisation is:
(i) providing an alternative service to that of the original broadcaster, thereby acting in competition with the original broadcaster for viewers; or
(ii) acting in competition with the original broadcaster for advertising revenues?"
Reproduction of a substantial part of films in memory buffers and on screens
Reference on reproduction of a substantial part of broadcasts in buffers and on screens
Defence under Article 5(1)
"174 So far as concerns, finally, the fifth condition laid down by that provision, these acts of reproduction carried out in the course of a technological process make access to the protected works possible. Since the latter have an economic value, access to them necessarily has economic significance.
175 However, if the exception laid down in Article 5(1) of the Copyright Directive is not to be rendered redundant, that significance must also be independent in the sense that it goes beyond the economic advantage derived from mere reception of a broadcast containing protected works, that is to say, beyond the advantage derived from the mere picking up of the broadcast and its visual display.
176 In the main proceedings, the temporary acts of reproduction, carried out within the memory of the satellite decoder and on the television screen, form an inseparable and non-autonomous part of the process of reception of the broadcasts transmitted containing the works in question. Furthermore, they are performed without influence, or even awareness, on the part of the persons thereby having access to the protected works.
177 Consequently, those temporary acts of reproduction are not capable of generating an additional economic advantage going beyond the advantage derived from mere reception of the broadcasts at issue."
Reference on section 73.
"In the light of Article 5(3)(o) of the Directive, and the Court's Judgment in Case C-106/89, Marleasing, is it necessary to construe the provision of national law as applying only to analogue channels, in so far as that is possible?"
"Can (and if so, must) the Marleasing principle be applied to part of a provision of national law? Specifically, when Art. 5(3)(o) of the Directive requires a defence to be limited to analogue services, and where the provision of national law contains a list of services, one of which is expressed to be digital and the others unspecified, does the Marleasing principle require the unspecified services to be interpreted as analogue only in order to comply with the Directive?"
Draft questions
(A) THE PRELIMINARY REFERENCE AND PROCEDURAL REQUESTS
(B) THE PARTIES
(a) ITV BROADCASTING LIMITED, a company registered in England, whose registered office is The London Television Centre, Upper ground, London, SE1 9LT.
(b) ITV 2 LIMITED, a company registered in England, whose registered office is The London Television Centre, Upper ground, London, SE1 9LT.
(c) ITV DIGITAL CHANNELS LIMITED, a company registered in England, whose registered office is The London Television Centre, Upper ground, London, SE1 9LT.
(d) CHANNEL 4 TELEVISION CORPORATION of 124 Horseferry Road, London, SW1P 2TX.
(e) 4 VENTURES LIMITED, a company registered in England, whose registered office is 124 Horseferry Road, London, SW1P 2TX.
(f) CHANNEL 5 BROADCASTING LIMITED, a company registered in England, whose registered office is The Northern & Shell Building, Number 10 Lower Thames Street, London, EC3R 6EN.
(g) ITV STUDIOS LIMITED, a company registered in England, whose registered office is The London Television Centre, Upper ground, London, SE1 9LT.
TVCatchup Limited, a company registered in England, whose registered office is c/o Hamlins Solicitors, 273/287 Regent Street, London, W1B 2AD.
(C) THE PROCEEDINGS BEFORE THE NATIONAL COURT
(D) SUMMARY OF THE RELEVANT FACTS
(a) Adobe Flash streams. These are deployed when the user is at a desktop or laptop computer. These computers will have an Adobe Flash player to enable the signal to be displayed on the screen;
(b) HTTP streams. These are for Apple mobile devices (iPhones and iPads); These devices will use the Apple Quicktime software to display the signal on the mobile device;
(c) RTSP streams. These are used for Android and Blackberry mobile phones. These devices have a media player able to display such a stream.
(E) THE CLAIMANTS' CASE OF INFRINGEMENT AND TVC's DEFENCES
(F) INTERNATIONAL TREATIES AND NATIONAL LEGISLATION
20 Infringement by communication to the public
(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.
17 Infringement of copyright by copying
(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
This includes storing the work in any medium by electronic means.
...
(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.
(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it
(a) in relation to the work as a whole or any substantial part of it, and
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright.
(G) COMMUNICATION TO THE PUBLIC
"Principle AW26. It does not amount to distribution by cable of the broadcast of the work concerned where the broadcast, received by an aerial larger than generally used for individual reception, is transmitted by cable to individual receiving sets within a limited area consisting of one and the same building or a group of neighboring buildings, provided that the cable transmission originates in that area and is made without gainful intent."
"it is all too clear - given that such retransmission is not just a technical means to ensure or improve reception of the original broadcast in the catchment area, as in the case, for example, of the installation and use of transceivers – that [the hotel proprietor] gave the hotel guests access to the protected work. If [it] had not made secondary use of broadcasts, the clients - although physically within the satellite catchment area - would not have been able to enjoy the broadcast work in any other way; they therefore constitute, in this sense, a 'new' public that differs from the primary broadcast public."
(a) The fact that the person intervening encrypts the communication or provides a key, and provides corresponding decoding devices, thus enabling the link to be established between the broadcasting organisation and the subscribers (see [78]);
(b) The intervention is one without which the subscribers would not be able to receive the programmes, although physically within the area (see [79]);
(c) The intervention is an autonomous service performed for profit (see [80]);
(d) The satellite provider provides a package of channels, not just those of one organisation (see [81]).
(i) "just a technical means to ensure or improve reception of the original broadcast in the catchment area": Rafael Hoteles at [42] and La Pergola AG in Egeda ; or
(ii) "an aerial larger than generally used for individual reception" for relaying the signal to "individual receiving sets within a limited area consisting of one and the same building or a group of neighbouring buildings, provided that the cable transmission originates in that area and is made without gainful intent" : Rome principle AW 26.
"In the first of these cases, however, it may be doubted whether there is a true secondary communication to the public in that the community antenna simply replaces a multitude of individual antennae on the same building or buildings and this is therefore no more than a reception of the primary broadcast. It may also be argued that there is no 'organization' which makes the communication in such a case, apart from the body representing the owners or tenants of the building in question. It can therefore be concluded that such forms of distribution fall outside the scope of Article 11bis(1)(ii), and this is the view that has been taken on a national and international level."
"26 In any case, in view of the modus operandi of RecordTV's iDVR service, we find that any communications made by RecordTV to Registered Users who had requested the recording of a particular MediaCorp show were made privately and individually. We see no reason why the aggregate of the private and individual communications made to each of the aforesaid Registered Users should transform the nature of such communications into "public" communications. Although any member of the public could register with RecordTV to become a Registered User, he had no immediate access to all (or any) of the MediaCorp shows already recorded by RecordTV. This was because RecordTV's iDVR service was not a video-on-demand service whereby RecordTV shared a library of recorded works with Registered Users. Rather, a Registered User was only allowed to access and view time-shifted recordings of the specific MediaCorp shows which he had requested to be recorded. Thus, each Registered User had to make a request for a particular MediaCorp show to be recorded for him, and only he could access the show recorded at his request."
(J) THE QUESTION REFERRED
On the interpretation of 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 ("the InfoSoc Directive"):
Question 1. Does the right to authorise or prohibit a "communication to the public of their works by wire or wireless means" in Article 3.1 of the Directive extend to a case where:
(i) Authors authorise the inclusion of their works in a terrestrial free-to-air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;
(ii) A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party's server and receive the content of the broadcast by means of an internet stream?
Does it make any difference to the answer to the above question if:
a. The third party's server allows only a "one-to-one" connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?
b. The third party's service is funded by advertising which is presented "pre-roll" (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or "in-skin" (i.e. within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?
c. the intervening organisation is:
i. providing an alternative service to that of the original broadcaster, thereby acting in direct competition with the original broadcaster for viewers; or
ii. acting in direct competition with the original broadcaster for advertising revenues?