Brussels, 08/03/2013 (Agence Europe) - Television companies may ban other companies from broadcasting their programmes on the internet because such retransmission constitutes, under certain conditions, “a communication to the public” of works which must be authorised by their author, ruled the European Court of Justice on Thursday 7 March in Case C-607/11.
The Court of Justice was asked by the High Court of Justice (England & Wales) whether there was a “communication to the public,” within the meaning of EU Directive 2001/29/EC on copyright in the information society, if an organisation such as TVCatchup Ltd (TVC) streams over the internet broadcasts to members of the public who would have been entitled to access the original broadcast signal using their own television sets or laptops in their own homes. ITV Broadcasting Ltd, Channel 4 Television Corporation, Channel 5 Broadcasting Ltd and other TV channels took TVC to court for broadcasting their programmes and films online in real time, saying that their copyright was being violated through “communication to the public” of their programmes, banned under UK law and also under EU Directive 2001/29/CE.
The Court of Justice says yes, explaining that “communication to the public” covers any broadcast or re-broadcast of a programme to the public “not present at the place where the communication originates, by wire or wireless means, including broadcasting.” In addition, authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications of those works to the public. The Court accordingly finds that, when a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must, as a rule, be individually authorised by its author. Accordingly, given that the making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication, that retransmission must be considered to be a “communication” within the meaning of Directive 2001/29 and such a re-transmission cannot therefore be exempt from authorisation by the authors of the retransmitted works when these are communicated to the public.
As to whether the protected works are being communicated to the public, the Court of Justice says that yes, they are and under its case-law, the “public” refers to “an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons.” In the case in hand, the broadcasting by TVC is for anyone living in the United Kingdom who has an internet connection and says they have a British TV licence, who are able to watch TV programmes online via live streaming.
The Court of Justice rules therefore that “communication to the public” under Directive 2001/29 must be interpreted as covering the retransmission of work included in a terrestrial television broadcast made by another body from the original broadcaster using internet services provided to its subscribers so that they can watch the programme by connecting up with the company's server, even if the subscribers are located within the reception area of the terrestrial television broadcast and are entitled to watch it on a television set. (FG/transl.fl)
= = = = = = = = = = = = =