The matter at hand
This matter concerns a request for a preliminary ruling on the interpretation of Article 9 of the Copyright DirectiveDirective 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, which provides, as far as relevant in this case, that this directive “shall be without prejudice to provisions concerning in particular (…) access to cable of broadcasting services (…)”.
The request was made in proceedings between commercial television broadcasters in the UK (“ITV”) and TVCatchup, which offered users, via the internet, ‘live’ streams of free-to-air television broadcasts.
In 2013, the ECJ ruled in the same case that the service offered by TVCatchup constitutes an act of communication to the public within the meaning of Article 3(1) of the Copyright DirectiveDirective 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 (C-607/11).
Following this decision, the High Court of Justice (England & Wales), Chancery Division, found that TVCatchup had infringed the copyright of ITV. As regards three of the television channels, however, namely ITV, Channel 4 and Channel 5, that court found that TVCatchup could rely on a defence under a provision of national law, according to which copyright is not infringed in the case of the immediate retransmission by cable, including internet, in the area of initial broadcast (the UK) of works broadcast on television channels subject to public service obligations.
In the appeal brought before the referring court, the referring court asked, in essence, whether Article 9 of the Copyright DirectiveDirective 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, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as covering and permitting national legislation relating to the retransmission by cable of works broadcast on television channels subject to public service obligations.
The judgment of the ECJ
The ECJ recalls that it has alreay held that a retransmission by means of an internet stream, such as that at issue in the main proceedings, constitutes a communication to the public (paragraph 23). “It follows that, in the absence of the consent of the author concerned, such a retransmission is not, as a rule, permitted, unless it falls within the scope of Article 5 of [the Copyright DirectiveDirective 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], which sets out an exhaustive list of exceptions and limitations to the right of communication to the public established in Article 3 of that directive, as recital 32 thereof confirms” (paragraph 24).
Considering that Article 9 “is intended to maintain the provisions applicable in areas other than that harmonised by the directive” (paragraph 26), the ECJ rules “that an interpretation of Article 9 to the effect that it permits a retransmission 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” (paragraph 27).
In this context, the ECJ considers it irrelevant whether the protected works were initially broadcast on television channels subject to public service obligations. “Indeed, there is no basis in the Directive that would justify affording less protection to those channels’ content” (paragraph 28).