Further to a request for a preliminary ruling on the interpretation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, the Court of Justice of the European Union (CJEU) held on 7 March 2013 that TV broadcasters may prohibit the live Internet streaming of their free-to-air programmes by another company, as that retransmission constitutes, under certain conditions, ‘a communication to the public’ of works which must be authorised by their author.
TVCatchup Ltd (TVC) offers a service allowing its users to receive via the Internet live streams of free-to-air TV broadcasts. TVC requires its subscribers to be based in the UK and be in possession of a valid licence. Several British commercial TV broadcasters brought proceedings against TVC to prohibit the distribution of their programmes in real time over the Internet for breach of their copyright. The High Court asked the CJEU whether the offer of such a service constitutes a communication to the public within the meaning of Directive 2001/29/EC, on the harmonisation of certain aspects of copyright and related rights in the information society.
With regard to the concept of 'communication', the Court held that each transmission or retransmission of a work using a specific technical means, must, as a rule, be individually authorised by its author.
With regard to the concept of 'public', the Court considered that the retransmission was aimed at an indeterminate number of potential recipients and implied a large number of persons. It is irrelevant whether the potential recipients access the works through a one-to-one connection, as it does not prevent a large number of persons having access to the same work at the same time and the cumulative effect of making the works available to potential recipients should be taken into account.
Accordingly the Court stated that: " The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC (...) must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast, where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver".
The fact that the retransmission was funded by pre-roll advertising and that it was made by a direct competitor of the original broadcaster did not play a role.