EU High Court Ruling’s Implications For Content Streaming In Europe And Worldwide

A recent Court of Justice of the European Union (CJEU) ruling relating to TV internet broadcasts from the UK underscores tight restrictions in place for content streaming in the European Union (EU), legal scholars say.

At issue is how TVCatchup (TVC) has claimed its retransmission of free-to-air broadcasts by ITV, Channel 4, and Channel 5 does not infringe broadcast copyrights under UK and EU legislation.

The UK broadcasters have claimed TVC has illegally rebroadcast content by streaming video steaming over the internet without paying or asking permission to do so.

TVC has contended that, under a UK copyright provision, it is entitled to rebroadcast programs and continues to offer TV broadcasts over the internet.

Earlier this month, the CJEU ruled TVC’s rebroadcasts infringe on the broadcasters’ copyrights. The main component of the ruling is that copyright provisions within EU member states cannot replace EU legislation, which is applicable in this case. Under Article 3(1) of Directive 2001/29 to the CJEU, the court affirmed that TVC’s online streaming of broadcasts was illegal since it constitutes “communication to the public” as defined by the directive.

The ruling is seen as another example of the CJEU’s strict interpretations of what the directive and copyright law in general allows.

“Restrictions to copyright remain narrowly interpreted by the CJEU,” Nicolas Maubert, a Paris-based attorney who specialises in IP, media, and telecommunications law told Intellectual Property Watch.

However, the ruling does not offer an alternative interpretation of related copyright laws in Europe. More specifically, it does not set an example of what might be possible for other countries to follow for video steaming over the internet.

As it stands now, the choices for commercial providers seeking to broadcast or stream video content over the internet remain limited, Florent Thouvenin, associate professor and chair of information and communications law at the University of Zurich, told Intellectual Property Watch.

“Maybe some licence holders would be ready to grant licences to TVC and other providers like it, but there are so many that granting licences to each and every one of them would probably be impossible,” Thouvenin said.

“Furthermore,” he said, “getting agreements or sub-licences from the TV stations might be even more difficult because for them, of course, they would be direct competitors with the streaming providers. This remains the case even though, in theory, it could be of value to them if they were to stream their content on every channel possible.”

EU legislators would have to become more active in order for the definition of copyright law relating to streaming to be interpreted differently.

“If you compared copyright law to other areas of intellectual property, there is more harmonisation in terms of trademark and design law,” Thouvenin said. “Copyright law seems to be way more difficult because there are many important industry players and interests at stake, so it very hard for European legislators to come up with directives. We are talking about a large amount of money with well-established players [interests at stake], so this is not going to happen anytime soon.”

However, while limited in scope, the court’s judgment is still not erroneous, either, Thouvenin said.

“The judgement is soundly based on the applicable law,” Thouvenin said. “I do not think the judgment is wrong.”

More Power to the EU

The CJEU also described the importance of copyright laws relating to “rights in the information society,” and more specifically, to the concept of “access to cable of broadcasting services” remaining homogenous throughout the European Union countries. This is one reason why the court rejected the UK High Court’s previous decision that said TVC’s broadcast were legal under British law. But in a broader sense, the CJEU made it clear that European directives and laws should supersede national regulations and laws for digital information-related copyright issues.

“[The relevant directive] must be interpreted as not covering, and not permitting, national legislation, which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations,” the CJEU wrote in its decision.

In this way, the case is seen as important for the message it sends to other European countries, Thomas Hoeren, a professor at the Fraunhofer Institute for Information technology (FIT) in Germany, told Intellectual Property Watch.

“The court apparently is focussing more and more on a greater harmonisation of member states’ copyright laws, which also appears to be a primary concern for the CJEU,” Hoeren. “The court is not tolerating national solutions that contradict what the relevant body of EU legislation allows member states to do.”

The CJEU ruling also will likely have little impact on TVC in the UK, especially in the aftermath of Brexit. “Ironically, the cynical reliance on the EUCJ by ITV comes at a point where EU influence over national law is set to disappear as a result of the forthcoming exit of the UK from the EU,” TVC said in a statement.

TVC did not to respond to emails or return phone calls when queried by Intellectual Property Watch about the case.

The ruling is also seen as ineffective since it does not address the unenforceability of unlicensed content streaming and file sharing on the internet, which remain largely unfettered despite attempts to block alleged illegal content distribution.

Sites accused of illegally streaming content are often blocked or forcibly removed from the Internet, but they often either begin operating again or other similar sites take their place. According to TorrentFreak, for example, The Pirate Bay remains the world’s most popular torrent site, despite attempts by the Swedish government and Google to block it.

“Streaming cannot be totally stopped. There are, of course, technical tools to stop access, but everything can be circumvented at the end.” Hoeren said. “How can a German court decision against CCTV giving access to German soccer games be enforced?”