Copyright: infringement of musical copyright

Background

Infringement of copyright occurs when there is communication to the public of a copyright work (Article 3, Copyright Directive (2001/29/EC)) (Article 3).

An act of communication to the public under Article 3 occurs when a link communicates protected subject matter to a “new public”, meaning a public not taken into account when the copyright holder authorised the initial publication of their work or protected subject matter. In Svensson and others v Retriever Sverige AB, the ECJ held that no communication was made to a new public by creating a hyperlink to a copyright work already made freely available on a website with the consent of the right-holder (see News brief "Linking and framing copyright material: guidance at last", www.practicallaw.com/4-558-3665).

Embedding copyright works in websites by framing is a communication to the public within Article 3 where the embedding circumvented measures adopted or imposed by the copyright holder to provide protection from framing (VG Bild-Kunst v Stiftung Preussischer Kulturbesitz, see "Copyright: communication to the public", Bulletin, IP and IT, this issue).

Facts

W held exclusive licences to the copyright in sound recordings of music. A collecting society licensed radio stations in the UK to play sound recordings of music, including W's.

T’s radio directory service enabled users to access internet music radio stations from around the world through a website or app. W argued that T had communicated musical copyright works to the public through that service in respect of those radio stations that were not licensed to make their content available in the UK, contrary to section 20 of the Copyright, Designs and Patents Act 1988 (CDPA).

The High Court held that T had infringed copyright except in relation to stations licensed by P in the UK (www.practicallaw.com/w-023-7628). T appealed, arguing that the fact that its radio platform was targeted at the UK did not mean that the foreign radio stations presented to UK users by T became targeted at the UK. T also argued that, following the end of the Brexit transition period on 31 December 2020, the UK courts should depart from ECJ case law on hyperlinking and communication to the public.

Decision

The court dismissed the appeal in part and upheld it in part.

Whether the foreign internet radio stations were targeted at the UK did not depend on whether one of W's sound recordings was being played at any particular moment, and even if it did, this would make no difference to the analysis: as T’s directory was targeted at the UK, any communication of W's copyright works played by a foreign station to UK users through T’s service would be a communication targeted at the UK.

The Court of Appeal and the Supreme Court have the power to depart from retained EU case law on the same basis as the Supreme Court could depart from one of its own precedents. However, this power should be exercised with great caution. The UK court should not depart from the ECJ's jurisprudence here because there had been no change in relevant domestic or international legislation since 31 December 2020. The courts of states who were signatory to international conventions should strive for consistency of interpretation rather than unilaterally adopting their own interpretations.

The concept of communication to the public was difficult to interpret, due to lack of guidance in the World Intellectual Property Organization Copyright Treaty and the CDPA and because of the conflict between the broad but territorial nature of the right and the cross-border nature of the internet. The ECJ had experience in confronting that tension and, although its jurisprudence was not necessarily perfect, that did not mean that better solutions were readily available. A new or alternative approach would create undesirable legal uncertainty.

VG Bild-Kunst was decided after the end of the Brexit transition period and was therefore not binding on UK courts, although under section 6(2) of the European Union (Withdrawal) Act 2018 (section 6) the court could have regard to it. VG Bild-Kunst was decided after the hearing of the appeal and the court requested the parties make submissions on it. It was considered persuasive because it formed the most recent case in a body of case law which was part of retained EU law, was a decision of the Grand Chamber (the full court of the ECJ), was directly relevant to the present case, and addressed the relationship between earlier ECJ decisions perceived to be in conflict with each other.

The High Court had concluded that T’s app containing a recording function was a different technical means to the original communication, so that there was a new communication to the public regardless of whether there was a new public. This reasoning confused the communication to the public right with the reproduction right. The act of communication lay in the app's provision of a link to the foreign station's webcast, which involved the same technical means as the original communication. The fact that the app had the record function enabled made no difference to the question of infringement by communication to the public. The mere potential for the user to record the stream did not affect the provision of the stream: the communication consisted in the link to the stream.

The presence or absence of the recording function made no difference to the scope or nature of the public that the rights holders had in mind when they authorised the original communication by the radio stations licensed to make W’s works available in the UK. The fact that this licence did not extend to reproduction by users simply meant that users who downloaded recordings might be infringing copyright.

Except in relation to T’s app with the record functionality the High Court's conclusions on the primary liability and joint tort feasance of T and the foreign stations, and on T's authorisation of infringements by the non-UK licensed stations were all correct.

Comment

This decision demonstrates that following the end of the Brexit transition period, there is unlikely to be any sudden departure from principles established by ECJ case law, particularly where the relevant area of law is complicated and derives from international treaties as well as EU and domestic law. Its explanation of the status of retained EU case law provides a useful summary of the approach to be taken under section 6.

Case: TuneIn Inc v Warner Music UK Ltd & another [2021] EWCA Civ 441.

First published in the May issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.