TV Catchup Limited's (TVC) website provides live internet streaming of UK television programmes. A group of UK national broadcasters, including ITV, Channel 4 and Channel 5, claimed that TVC was infringing copyright in their broadcasts and films by communicating them to the public and by making (or authorising the making of) transient copies in TVC's servers and on viewers' screens ([2011] EWHC 1874 (Pat)).

There was never any doubt that the original broadcasts and films were communications to the public within the meaning of Article 3(1) of the Copyright Directive (2001/29/EC) (Article 3(1)) (see box "Article 3(1)"). The main question, which the High Court referred to the ECJ, was whether TVC's retransmission by live streaming was also a communication to the public within the meaning of Article 3(1), and so potentially an infringing act. The High Court also asked the ECJ questions about the significance of the retransmitter's service being funded by advertising and the retransmitter being in direct competition with the original broadcasters for viewers and/or advertising revenue.

The ECJ considered the following:

Meaning of "communication". As there is no exhaustive definition of "communication to the public", the ECJ looked to the preamble in the Directive, which suggested that the concept should be interpreted broadly. The ECJ was also influenced by the aim of the Directive as a whole: that is, to establish a high level of protection of authors. In addition, Article 3(3) explicitly says that an author's right to prohibit communication to the public is not exhausted when a communication to the public first occurs. The ECJ also noted that, according to the preamble, an author's consent is needed for each new transmission or retransmission of a work that uses a specific technical means.

TVC had argued that internet streaming was not a communication as it was merely a technical way to ensure or improve reception of the original television broadcast within the catchment area of that broadcast. The ECJ acknowledged that such a mere technical means would not constitute communication, citing, among others, Football Association Premier League Ltd and others v QC Leisure and others; Karen Murphy v Media Protection Services Ltd, joined cases C-403/08 and C-429/08 (see News brief "Pubs, football and decoders: the end of exclusive content licences?").

However, TVC had gone further than maintenance or improvement (and did not have the aim of maintaining or improving the reception in any case) and had created a new transmission of the protected works.

The ECJ concluded that making the television programmes available by retransmitting them over the internet used a specific technical means which was different from the original communication, so the retransmission must be a communication within the meaning of Article 3(1).

A "new public"? TVC sought to rely on, among other cases, SGAE v Rafael Hoteles (C-306/05) and Football Association Premier League, which had suggested that "public" must be a "new" public; that is, a group of people outside those to whom the broadcast was originally intended. TVC argued that its retransmission was not to a new public as anyone living in the region to which the broadcast was shown, and who held a TV licence, would be entitled to watch the same programmes on TVC as they would via the broadcasters' own websites or other online services.

However, the ECJ distinguished SGAE and Football Association Premier League as in those cases the defendants had merely made the original broadcasts accessible, whereas in TV Catchup, the two transmissions of the television content were each made under specific technical conditions, using a different means of transmission.

The ECJ concluded that TVC's communications were made to the public and it was irrelevant that each viewer would access the content via a "one-to-one" internet connection as a large number of people could still access the content all at one time.

The retransmitter. The High Court had sought clarification over the significance of a retransmission being funded by advertising, and therefore being of a profit-making nature, and of the fact that TVC was in direct competition with the broadcasters.

Once again citing Football Association Premier League, the ECJ said that it is not irrelevant that a communication within the meaning of Article 3(1) is of a profit-making nature but, according to SGAE, neither is it an essential condition for the existence of a communication to the public. The ECJ found that a profit-making nature does not determine conclusively whether a retransmission is a communication within the meaning of Article 3(1) and so that factor did not influence its ruling that there was a communication to the public.

The ECJ also found that there was nothing in either its own case law or the Directive to say that the fact that TVC was in direct competition with the broadcasters was relevant, and so this did not influence its decision.

The ECJ has explored the meaning and scope of the "communication to the public" right in a number of cases, including Football Association Premier League and SGAE.

According to Ballard, TV Catchup shows that the ECJ is now confident in its new understanding of the right. The ECJ has come to an interpretation based around the three types of situation found in Article 11 bis of the Berne Convention: the original sending of protected works; dealings by intermediaries; and public performance or display of those works. "So what is covered by the right is not just the sending of a signal to the public but also the distribution of the signal by a wide range of intermediaries, including platform operators," says Ballard.

Cordell notes that the ECJ's decision that a one-to-one internet connection amounted to a communication is important, as it brings streaming within the scope of the communication to public right. "However, there is scope for argument in future cases as to how many people need to be able to access the work at the same time in order to make up a public" he says. "We may also see disagreements about whether the defendant's acts amount to a mere technical intervention to maintain and/or improve the quality of reception of the relevant broadcast, or whether the acts go beyond that and amount to a transmission or retransmission."

Ballard points out that there is an exception in section 73 of the Copyright, Designs and Patents Act 1988 for live transmission by cable of the UK public service broadcasters' channels, so UK-based websites will still be able to retransmit those channels for the time being. "That exception does not, however, appear to be authorised by the Directive", says Ballard, "and if that is right, the exception is likely to be repealed since rights holders that suffer loss will have an action for so-called Francovich damages against the government."

In the meantime, TVC remains upbeat, commenting that the ECJ's decision affects only a handful of channels that they carry. According to TVC, "people will still be enjoying X-Factor and EastEnders on TVC for years to come, contravening only the laws of good taste, and nothing else."