The European Court of Justice (ECJ) has published a landmark ruling that unauthorized retransmission of live broadcast TV over the Internet is illegal.
This means that the many web sites currently retransmitting live TV without permission will have to obtain rights clearance from broadcasters, and is likely to kindle a clampdown by content rights holders. The main target will be sites that retransmit live sport, because of the high rights costs involved, as well as potential for running lucrative advertising against the programs.
The verdict is a victory for the UK Free To Air commercial broadcasters ITV, Channel 4 and Channel 5, which brought the case against the site TVCatchup.com for streaming their shows, as well as those of the BBC. But the ruling will also affect broadcasters elsewhere in Europe by setting the precedent that service providers should do no more than merely maintain or improve the signal over the original broadcast medium, in this case digital terrestrial.
"The case was brought by ITV and other UK broadcasters against TVC, which retransmitted their broadcasts to its subscribers,” said Ballard, a broadcast lawyer and partner at London law firm Harbottle & Lewis, who described the ruling as highly significant. “It is not an isolated case. It is one in an increasingly long line of decisions by which the Court appears to be laying the foundations for a new European legal order in copyright and other forms of intellectual property.”
Ballard continued, “On the one hand, it is strengthening authors’ rights, such as by extending the concept of communication to the public, which subsumes the old broadcasting right, to encompass the activities of those who, like TVC, intervene in the distribution of broadcast services. On the other hand, it is limiting those rights in pursuit of single market principles by outlawing exclusive national licensing, extending the principle of exhaustion of rights to downloads, limiting the amount that copyright proprietors may charge as royalties and balancing owners’ rights against those of users."
The ECJ decided that TVCatchup.com, which has been making money from the retransmissions by inserting pre-roll advertising before shows, was in breach of a 2001 law that describes the original broadcasters as "authors" of the programming, giving them the exclusive right to approve or restrict its use.
"EU law seeks to establish a high level of protection for authors of works, allowing them to obtain an appropriate reward for the use of those works," the ECJ said in its judgment. "Television broadcasters may prohibit the retransmission of their programmes by another company via the internet. That retransmission constitutes, under certain conditions, a 'communication to the public' of works which must be authorized by their authors."
The judgment was applauded by ITV, whose spokeswoman said: "ITV, Channel 4 and Channel 5 welcome the judgment by the European court of justice. The judgment makes it clear that, subject to some limited defenses, broadcasters and content producers should be able to prevent unauthorized streaming of free-to-air channels. We now look forward to the UK court's implementation of this judgment. We reserve the right to pursue any site or service we believe to be infringing our copyright or using our content in an unlicensed, illegal capacity."
TVCatchup had argued that licenses granted to ITV, Channel 4 and Channel 5 by media regulator Ofcom also apply to subsidiary channels such as its own service, but that has now been ruled out. Meanwhile, the ECJ ruling will also attract attention outside Europe, for example in the U.S., where FOX Broadcasting recently asked a federal judge to issue an injunction preventing Dish Network from letting customers who use Dish's controversial Hopper digital video recording device to watch Fox programs on tablets and smartphones.
If granted, this injunction would also stop Dish, the second-largest U.S. satellite operator after DirecTV, from retransmitting live programs to PCs and mobile devices via the latest Hopper set-top box. Currently, all Dish channels are available for live viewing on devices other than a TV to customers with the relevant subscription package. Fox has argued that these services breach its license agreement with Dish.