UK copyright exceptions for digital retransmission of wireless broadcasts and for television in pubs: the beginning of the end
Author: Tony Ballard
In its response to the Hargreaves Review, the Government agreed with the Review’s central thesis. It said that the widest possible exceptions to copyright within the existing EU framework were likely to be beneficial to the UK. As work commences to see how far those exceptions can go within that framework, however, the courts have been finding that some of the existing exceptions already go too far. Where they go beyond what is permitted, they are likely to be repealed. Little attention has yet been paid to this upcoming retrograde motion.
It began with Floyd J in June last year (2011) when he delivered judgment in the TVCatchup case. That was (indeed still is at the time of writing) a case which in essence turns on whether the retransmission on the internet of live UK public service broadcast TV to online audiences within the UK infringes copyright in the broadcasts on the basis that the retransmission is a communication to a new public. That key question remains to be answered with the help of the Court of Justice but in the meantime a number of things have been established by the June judgment – first that, if there is an infringement, the exception for the retransmission of wireless broadcasts in s.73 of the CDPA provides a limited defence and second, more materially for present purposes, the exception applies to digital which goes beyond the analogue uses that are permitted by the EU framework, specifically Article 5 of the Information Society Directive. No amount of interpretative sophistry permitted by the principle established in Marleasing could rescue it. The exception goes beyond the boundaries set by the Directive.
It means that, for the time being, digital retransmissions on the internet and other cable-based systems of the main broadcast channels enjoy an exception from copyright. But if the BBC, ITV or other PSBs thereby suffer loss, they will no doubt be considering making Francovich damages claims against the Government for failure to transpose the Directive into national law. The Government in turn will no doubt be considering its powers under the European Communities Act to repeal s.73 rather promptly and thereby limit its liability.
Then in February this year (2012) Kitchin LJ descended from the Court of Appeal to finish off the FAPL v QC Leisure case that has had broadcasting lawyers on their toes for years now. The Court of Justice having replied to a number of questions that he had referred to it, he decided a number of issues left over from the trial in 2008. One of them concerned the showing of Premier League matches on television in a pub. If that was an infringement of the copyright in any film included in the broadcast, was it within the exception for the free public showing of broadcasts in s.72 of the CDPA? Again, the exception went beyond the boundaries set by Article 5 of the Information Society Directive and did so in so clear a way that there was no scope for interpreting it down on the Marleasing basis.
It means that, again for the time being, pubs will have a small shield against some of the copyright claims to which they are now exposed by showing programmes on television in pubs (thanks to other parts of the FAPL case). And if that means that the rights owners will suffer loss, the Government will again know where they are likely to turn. It does not therefore seem likely that the s.72 exception will survive any longer than the s.73 exception, at least in its present form.
The withdrawal of these exceptions will be a salutary reminder to those exploring ways of enlarging the present list of UK exceptions that the EU framework has teeth. It is part of a trend as European law increasingly (in our day to day work) sets the scene in broadcasting copyright and regulation.