ITV & Others v TVCatchup: CJEU rules s.73 CDPA defence not applicable to online streaming of live TV broadcasts

The CJEU has issued its ruling on the latest question referred to it in the long-running dispute between ITV (and others) and TVCatchup, as to whether Article 9 of the InfoSoc Directive permits the UK to retain the defence contained in section 73 of the Copyright, Designs and Patents Act 1988 (the "CDPA") (which permits retransmission of a broadcast by cable to users in the area to which the original broadcast was made). As such, TVCatchup cannot legally provide live streaming of free-to-air broadcasts via the internet in the UK. The decision confirms the protections afforded to copyright holders and originating broadcasters in the UK.

Many businesses are dependent upon s.73 CDPA to prevent their retransmission of broadcast works from amounting to copyright infringement. The latest decision in these lengthy proceedings will be very important to the broadcasting industry and to consumers of broadcast programming.

The decision confirms that s.73 CDPA cannot provide an exception to copyright infringement in the context of the InfoSoc Directive and accords with the UK government's proposal to abolish s.73 CDPA via the draft Digital Economy Bill, which is still under consideration by the House of Lords and due to receive Royal Assent by spring 2017.

The CJEU has re-confirmed the right of originators to control how, when and where their material is transmitted or re-transmitted (even where recipients are legitimately permitted to receive the original broadcast), thus putting control in the hands of the original broadcaster.

The decision will be welcomed by originating broadcasters in combatting illegal streaming of broadcast content online. It likely also opens the door for public service broadcasters to seek payment of retransmission fees from cable operators.

Click here to access the firm's full article and related background on the decision.