CONTROLLING TV CONTENT IN THE ONLINE WORLD
Will TV and internet convergence ultimately lead to the death of those much-loved TV screens in the corner of our living rooms?
The jury is still out, but one thing seems clear. Viewers in the UK are increasingly using their computers, iPads and other portable devices like televisions, at least if the growth of online live streaming and on demand (VOD) services like TV Catch-Up and BBC iPlayer is anything to go by.
For broadcasters and other rights holders, the move to online content provides an array of opportunities, but it also presents challenges. How, for example, can a broadcaster retain control of its content in an online world in which copying of content has never been easier and territorial borders do not exist?
Recent case law has given some clarity to whether unauthorised live streaming of content is copyright infringement, and also whether online copyright infringement occurs at the place where the content is viewed or where the website's servers are based.
Does unauthorised online live streaming infringe copyright?
A recent High Court decision has clarified that unauthorised live streaming of content can infringe the copyrights in that content.
Those already familiar with UK copyright law will know that it is based on a number of specific restricted acts. Doing one of those restricted acts in relation to a copyright work without the copyright owner's consent will generally amount to copyright infringement, if no permitted exception applies. In 2010, TV Catch Up tried to argue that providing online live streaming is not a restricted act and so does not infringe copyright. The UK High Court disagreed.
TV Catch Up's name is something of a misnomer. While it originally offered a catch up service for viewers who had missed a TV programme, these days its content is all provided by live streaming. Members of the public can sign up through its website and watch live streams of over 50 TV channels. TV Catch Up makes its money from advertisements placed before the live stream starts.
Several broadcasters whose content was being streamed – including ITV, Channel 4 and Channel 5 – issued proceedings, claiming that TV Catch Up had infringed the copyrights in their broadcasts by communicating them to the public by electronic transmission. TV Catch Up applied for summary judgment on the basis that its activities do not fall within the restricted act of "communication to the public" as defined in the UK copyright act, and therefore it was not infringing copyright.
It was an interesting, if optimistic, argument. "Communication to the public" is defined as including broadcasting a work and making a work available on demand by transmission. Both parties accepted that TV Catch Up's transmissions did not fall into either of these categories. However, the judge noted that this restricted act merely "includes" broadcasting and making available on demand, but is not limited to those two examples. He held that TV Catch Up's live streaming activities amounted to communicating the content to the public by electronic means, and dismissed its application for summary judgment.
What if an unauthorised website targeting UK viewers is based outside the UK?
One of the perennial difficulties with the internet from a legal point of view is that it does not stop at a country's borders. One issue is therefore whether a broadcaster can take action in the UK to stop someone from providing its content to UK viewers over the internet using servers located in another country. The Court of Justice of the European Union ("CJEU") is currently considering this question. However, even if it decides that the infringement only happens where the servers are based, there may still be a legal basis for the broadcaster to sue the website operator in the UK.
In Football Dataco Limited v Sportradar GmbH, the Claimants are several UK owners of data relating to professional league football matches. They allege that the Defendants have "re-utilised" parts of their database and provided the data to UK customers via a website operated from servers in Germany and Austria. "Re-utilisation" in database law means making a database available to the public by transmission. As such, it is analogous to "making available to the public by electronic transmission" in copyright law, as outlined above.
One of the key questions is whether the Defendants can be liable for "transmission" in the UK when their servers are based in other countries. The Claimants argued that "transmission" is a two-ended process, involving both the acts of hosting the website and of receiving it – the "communication theory". As the Court of Appeal phrased it, "it takes two to tango". The Defendants, on the other hand, argued that "transmission" occurs only in the place from which the data emanates – the "emission theory". The High Court favoured the Defendant's argument. On appeal, the Court of Appeal has referred the question to the CJEU.
The communication theory would clearly make life more straightforward for broadcasters wishing to pursue websites hosted overseas. However, even if the CJEU prefers the emission theory, businesses which publish material on websites accessible in the UK still face the risks of authorising an infringement and of joint tortfeasorship in the UK.
For authorisation and/or tortfeasorship to apply, the UK viewer would need to have infringed copyright in the content. This may be difficult for a broadcaster to show. Interestingly, the Advocate General in FAPL v QC Leisure took the view that displaying a broadcast on a screen amounts to a reproduction of that broadcast, as does the transient storage of the broadcast in a memory buffer (and presumably, by analogy, a computer's RAM). If the CJEU follows this non-binding opinion, it would open the door to broadcasters arguing that viewing a copyright work on a TV or computer screen amounts to unauthorised copying, and that the website operator has authorised this and/or is liable as a joint tortfeasor in the UK.
Broadcasters will no doubt take some reassurance from the TV Catch Up decision, which has clarified that online live streaming is a restricted act under the UK copyright legislation, even though it is not expressly referred to. This shows how copyright legislation can sometimes be flexible enough to cover activities that were not necessarily envisaged at the time the legislation was drafted.
Broadcasters would no doubt prefer that online infringements occur both at the place of transmission and the place of receipt. However, even if the CJEU does not agree and finds in favour of the emission theory, broadcasters may still be able to start proceedings in the UK against websites operated from outside the UK if they can show that UK viewers have infringed copyright and that the website has authorised and/or is a joint tortfeasor in this infringement.
"Mark looks at current copyright litigation and explores the Courts’ views on online streaming and the jurisdictional issues that accompany provision of online content."
"A recent High Court decision has clarified that unauthorised live streaming of content can infringe the copyrights in that content."