In a preliminary ruling of 7 March 2013, the Court of Justice of the European Union ("ECJ") clarified that streaming of TV content should be regarded as a communication to the public.
The preliminary ruling responds to a request by the High Court of Justice of England and Wales on 17 November 2011. In the case before the High Court, a number of British TV broadcasters sued TVCatchup Ltd. for copyright infringement. TVCatchup streams UK TV channels via its website. Only UK based users with a valid TV licence can view the online streams.
The UK Court referred a number of questions to the ECJ on the interpretation of Article 3 of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society ("Directive 2001/29"). Article 3 of Directive 2001/29 obliges Member States to provide authors with the exclusive right "to authorise or prohibit 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". The questions of the UK Court related primarily to the interpretation of the term "communication to the public".
The ECJ explained that "communication to the public" covers a retransmission of the works included in a terrestrial television broadcast (i) if the retransmission is made by an organisation other than the original broadcaster; (ii) by means of an Internet stream made available to the subscribers of the other organisation; (iii) even though the subscribers are in the same reception area of the television broadcast and may lawfully receive the broadcast on television.
In other words, under Article 3 of Directive 2001/29, the author must consent to each separate communication to the public. Based on the ECJ ruling, the online streaming of TV broadcasts is considered to amount to a communication to the public which is separate from the original broadcast, even if it is limited to the territory where the TV broadcast is available to all TV licence holders. As a result, the author may prevent the online streaming of the TV broadcasts by a third party.
The ECJ added that it is irrelevant in this assessment whether the retransmission is for profit and whether the retransmitting company is in direct competition with the original broadcaster.
Interestingly, TVCatchup argued that its retransmissions did not reach a "new public" which is necessary based on ECJ Premier League and Airfield judgments (See, VBB on Belgian Business Law, Volume 2011, No. 10, p. 6 and p. 13, available at www.vbb.com). It argued that their users are identical to the public of the original TV broadcast. However, the ECJ distinguished the situation at hand from its earlier judgments. The ECJ Premier League and Airfield judgments concerned situations where an operator had made accessible a broadcast to a new public which was not considered by the authors concerned when they had authorised the broadcast in question. Instead, the present case relates to two communications, a terrestrial broadcast and the making available over the Internet, which is a separate communication and must be authorised individually.
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