The CJEU responded today (1 March) to the UK Court of Appeal’s request for a preliminary ruling, stating that Article 9 of the Copyright Directive bars application of the national exception.
The dispute centres on streaming website TVCatchup and UK TV broadcasters ITV, Channel 4 and Channel 5, whose copyrighted transmissions were picked up and retransmitted over the internet.
The CJEU confirmed in March 2013 in response to a previous request for a preliminary ruling from the UK Court of Appeal that the retransmission of satellite broadcasts via the internet without the copyright holder’s consent constitutes an unlawful communication to the public under Article 3 of the Copyright Directive.
But a question remained as to whether TVCatchup could defend itself under Section 73 of the UK’s Copyright, Designs and Patents Act.
Section 73 of the UK’s Copyright, Designs and Patents Act says that copyright in a broadcast is not infringed if the wireless broadcast is made from a place in the UK and immediately transmitted by cable, so long as the broadcast is made for reception in the area in which it is retransmitted by cable and forms part of a qualifying service.
It also says the copyright is not infringed if the broadcast is made for reception in the area in which it is retransmitted by cable.
In his opinion, delivered in September 2016, CJEU advocate general Henrik Saugmandsgaard Øe argued that Section 73 was an attempt to make an exception to Article 3 of the EU Copyright Directive’s exclusive right of communication to the public, “in that it provides that the copyright ‘is not infringed’ where certain broadcast works are retransmitted in the area for which they were intended”.
This contravenes Article 9 of the same directive, according to Øe.
Øe said: “The objectives pursued by Section 73 of the Copyright, Designs and Patents Act—namely, according to the UK government, to increase consumer choice for public service broadcasting, by allowing consumers to receive such broadcasts in areas suffering from poor terrestrial television reception, and to encourage cable network operators to lay cable infrastructure—cannot have the slightest impact on the interpretation of the scope of Article 9 of EU Copyright Directive,” Øe added.
Agreeing with Øe, the CJEU ruled: “An interpretation of Article 9 to the effect that it permits a retransmission, such as that at issue in the main proceedings, without the consent of the authors, in cases other than those provided for in Article 5 of that directive, would run counter not only to the objective of Article 9, but also to the exhaustive nature of Article 5, and, consequently, would be detrimental to the achievement of the principal objective of that directive which is to establish a high level of protection of authors.”
Therefore, “Article 9 of Copyright Directive must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable.”
The UK’s Digital Economy Bill, which is currently making its way through the legislature, contains a proposal to repeal Section 73.