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Unlicensed online retransmissions of TV shows within 'the area of initial broadcast' constitutes copyright infringement, rules EU court

Retransmitting TV programmes online within "the area of initial broadcast" is an act of copyright infringement under EU law, if carried out without the permission of the TV broadcasters, the EU's highest court has ruled.01 Mar 2017

In a judgment issued on Wednesday, the Court of Justice of the EU (CJEU) said national laws of EU countries "which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations" are not permitted.

The ruling is central to a long-standing dispute between a number of UK broadcasters and online streaming service provider TVCatchup.

In 2013, UK broadcasters ITV, Channel 4 and Channel 5 won the right to prevent online streaming service provider TVCatchup from retransmitting the TV programmes they show to users of mobile devices via any "mobile telephony network".

However, the High Court also ruled that TVCatchup was not restrained from retransmitting ITV, Channel 4 and Channel 5 programmes to a UK audience over the internet.

ITV appealed that ruling before the Court of Appeal in London, which asked the CJEU to help it interpret EU copyright laws to help it determine the outcome of that appeal.

UK copyright laws state that the unauthorised communication of rights holders' content to the public is an act restricted by copyright.

Under the Copyright, Design and Patents Act (CDPA), copyrighted material is communicated to the public unlawfully if a broadcast or film is made available to the public via an "electronic transmission" in a broadcast that is accessible by the public "from a place and at a time individually chosen by them".

That section of the Act was introduced by The Copyright and Related Rights Regulations in 2003 to implement new EU copyright laws.

According to the EU directive, broadcasters' rights in copyright apply broadly to all communications to the public not made by the rights-holding broadcaster. This right "should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting", under the EU law.

However, the directive leaves intact certain rights applicable to the broadcasting of programmes as provided for under a separate EU Directive which governs the coordination of certain rules relating to satellite broadcasting and cable retransmission.

Section 73 of the CDPA currently reflects a carve out from the separate rights that broadcasters enjoy in relation to retransmissions by cable. It permits the unlicensed retransmission of broadcasts transmitted over cable networks by ITV, Channel 4 and Channel 5 and other listed 'qualifying services' by others within the area in which the original transmissions are received, subject to compliance with the wider copyright rules relating to the reproduction and making available of rights holders' content.

The UK government has, however, confirmed that section 73 of the CDPA will be repealed through the Digital Economy Bill, which is currently before the UK parliament. It recently published its response to a technical consultation (12-page / 646KB PDF) it held on the transitional arrangements that would apply following the repeal of that section of the Act.

"This is a good decision as it protects the investment put into programme making by these broadcasters," said Iain Connor, IP expert at Pinsent Masons, the law firm behind Out-Law. "The case highlights the complexity of EU copyright law which is only partially harmonised across the EU and, in general, implemented by national laws which vary from state to state."