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TV Catchup – CJEU gives little air time to retransmission defence

By Alastair Mackichan

The Court of Justice of the European Union has put to bed any doubt as to whether section 73 of the Copyright Designs and Patents Act (“CDPA”) is compatible with the EU Copyright Directive. Section 73 provides a defence against copyright infringement for operators of cable platforms in relation to the retransmission of “qualifying services” (those of the UK public service broadcasters). However, more recently, the section 73 defence has also been relied upon by the operators of the TV Catchup service to retransmit content via the Internet without the broadcasters’ consent, triggering litigation by ITV and others (see our previous blog posts here, here and here for the background to these lengthy proceedings).

In its ruling in ITV Broadcasting v TV Catchup, C-275/15, the CJEU confirmed that the rather opaque reference to “access to cable of broadcasting services” found in Article 9 of the Directive should not be interpreted as permitting national legislation to provide a defence to copyright infringement in the case of the immediate unauthorised retransmission by cable, including via the Internet, of the initial broadcast. The Court also re-confirmed that the original broadcaster has the ability to control how, when and where its content is transmitted or re-transmitted.

The decision will be welcomed by the broadcasting industry, but in light of the amendment provided for in the Digital Economy Bill (which will repeal section 73 of the CDPA in its entirety), the ruling is unlikely to have a major impact in the UK beyond these proceedings. More broadly, the change in the law creates the possibility that the public service broadcasters could charge cable operators a retransmission fee if such operators wish to retransmit the broadcasters’ channels via their cable platforms.

The full judgment of the CJEU can be found here.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2017/03/tv-catchup-cjeu-gives-little-air-time-to-retransmission-defence/