On 1 March 2017, the Court of Justice of the European Union (CJEU) gave its decision in the case of ITV Broadcasting v TVCatchup, C2075/15. The TVCatchup case arose following a referral from the UK Court of Appeal. The case concerns the TVCatchup streaming service which enabled users to access live third party broadcasts over the internet and on mobile devices (the TVCatchup service had originally provided a catch-up service but the dispute ultimately centred on the live streams).
The UK courts found that TVCatchup infringed the broadcasters’ communication right, save that the streaming of public service broadcasters’ core channels (all BBC Channels, ITV1, and Channel 4 and 5’s core channels ) over the internet fell within the cable retransmission exception in section 73 of the Copyright, Designs and Patents Act 1988.
The UK Court of Appeal decided that section 73 was inconsistent with EU law as it did not fall within any of the permitted exceptions of the Copyright Directive, but made a reference to the CJEU to confirm the position.
The CJEU confirmed that section 73 is not compatible with the Copyright Directive and that the term “access to cable of broadcasting services” (in Article 9 of the Copyright Directive) does not cover nor permit national legislation which provides that copyright is not infringed in the case of immediate retransmission by cable, including via the internet. Therefore the UK government is required to repeal section 73.
Government’s proposals to repeal the existing retransmission exemption
In any event, the CJEU’s decision is largely academic as the UK government has already confirmed that it intends to repeal section 73. It consulted on how best to do this, and what if any transitional arrangements might need to be made, in November 2016. The government provided its response to the consultation in February this year, where it concluded that section 73 can be repealed without a transition period and that no compulsory structure for licensing needs to be introduced. This would mean that discussions between rightsholders, broadcasters and cable providers would need to be undertaken in relation to the value (if any) of the underlying rights following the repeal.
Osborne Clarke comment
This brings to an end one of the longest running cases in UK broadcasting history. The abolition of section 73 will be welcomed by rightsholders because it has arguably been extended far beyond its intended scope, and in many ways this is a classic example of “bricks and mortar” law no longer being fit for purpose in the internet age.
In practical terms, there are few remaining cable operators in the UK, so this case is likely to have a greater impact on online streaming service providers. Public service broadcasters may well seek payment of retransmission fees from cable and internet operators, with the hand of the operators considerably weakened by this decision. The decision will also make it easier for broadcasters to bring proceedings for illegal streaming of their content.