“Communication To The Public” Also Hot-Button Issue Across the Pond

Ben Farrow is a JD candidate at Osgoode Hall Law School.

As previously reported by the IPilogue here, the Supreme Court of Canada is not the only national court grappling with the term “communication to the public”. Similar to two of the internet copyright cases heard by the Supreme Court of Canada earlier this month and reported by the IPilogue here, questions related to transmissions of protected content over the internet have also arisen in the United Kingdom.

In the case of ITV v TVCatchup, Justice Floyd of the UK High Court of Justice has returned with a ruling disposing with a series of issues which arose during his initial decision in the case in July and referring a question relating to the definition of “communication to the public” to the European Court of Justice (ECJ). As reported by the IPilogue in August 2011, TVCatchup is a live-streaming service that allows users to view television broadcasts on their computers, tablets, smartphones, and other internet-capable devices.  The service individually identifies users and then serves them content based on their existing television licence (they can access channels like ITV, Channel Five, and the BBC, but viewers can only receive content that they are legally entitled to watch based on their existing television licence).  TVCatchup funds its operation by showing advertisements before each live stream begins and by “skinning” the stream such that advertisements served by TVCatchup are displayed around the edges of the window displaying the live stream.  It is also important to note that TVCatchup does not alter the original stream, so any advertisements shown by the broadcasters as part of their television transmission are not affected.

Although he had initially planned to refer two questions to the ECJ this past summer, Justice Floyd deferred the case awaiting a ruling in Football Association Premier League v QC Leisure by the ECJ. As a result, the Justice Floyd was able to apply that judgement to TVCatchup and decide an issue related to “reproduction of a substantial part” of films in memory buffers and on screens. Consequently, Justice Floyd is now only referring a single question to the ECJ on “communication to the public”.

Based on his ruling in July, Justice Floyd entertained the idea of using the definition of “communication to the public” from a case called Airfield.  This case was actually a set of joined cases heard by the ECJ (Joined Cases C-431/09 and C-432/09) about the encrypted re-broadcasting of satellite television signals. Following a review of the facts, Justice Floyd ultimately distinguished Airfield from TVCatchup and decided to ask the ECJ the following questions:

“Does the right to authorise or prohibit a “communication to the public of their works by wire or wireless means” in Article 3.1 of the Directive extend to a case where:

1.  Authors authorise the inclusion of their works in a terrestrial free‑to‑air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;

2.  A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party’s server and receive the content of the broadcast by means of an internet stream?

Does it make any difference to the answer to the above question if:

(a) The third party’s server allows only a “one‑to‑one” connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?

(b) The third party’s service is funded by advertising which is presented “pre‑roll” (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or “in‑skin” (i.e. within the frame of the viewing software which displays the received programme on the subscriber’s viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?

(c) The intervening organisation is:

(i) providing an alternative service to that of the original broadcaster, thereby acting in competition with the original broadcaster for viewers; or

(ii) acting in competition with the original broadcaster for advertising revenues?”

The ECJ’s response to this question could represent an important precedent in the on-going battle over the transmission of protected content over the internet.