Reproduction right and the exception for temporary acts of reproduction
Linear transmission of TV content involves the reproduction of fragments of broadcast at various stages of the technical process. These fragments are temporarily stored in the decoder or in the RAM memory of the computer, depending on the technical means used to transmit the signal, and are created in the end user’s TV screen while watching the broadcast.
To the court, the reproduction right does apply to ephemeral fragments of a work, providing that they contain ‘elements which are the expression of the authors’ own intellectual creation’. While sporting events as such do not constitute protectable elements, other works included in the framework of the television broadcast are indeed protectable. However, the court also ruled that the ‘mere reception’ of broadcasts and their display in private circles ‘does not reveal an act restricted by European Union legislation’.
For this reason, the reproduction of those (fragments of) copyright works can benefit from the exception established in Article 5(1) of the Information Society Directive. Under this exception, temporary acts of reproduction that are merely technical in nature and have the sole purpose of enabling a ‘lawful use’ of the work do not constitute an infringement of the reproduction right.
Insofar as the end user does not engage in other restricted acts, such as communication to the public, the CJEU excludes copyright infringement by ‘mere reception’ of broadcasts by virtue of an act that is not restricted by the applicable legislation — such as importing lawful TV decoders from another Member States without the authorisation of the rights holder. However, a different conclusion applies when the reception of broadcasts is made possible by acts restricted by copyright.
In Filmspeler, a case on sale of multimedia player with add-ons linking to unauthorised streaming websites, the CJEU ruled that the transient copies made in the end user’s computer while watching the streaming constitute, as a rule, an infringement of the reproduction right and does not benefit from the exception for temporary acts of reproduction. This is because the streaming of works protected by copyright from an illegal source is not a ‘lawful use’ within the meaning of Article 5(1).
Communication to the public by retransmission of TV signal via the internet
In TVCatchup, the Court of Justice held that ‘each transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question’. The decision establishes that simultaneous retransmission of terrestrial or satellite broadcast signals over the internet is an infringement of the right of communication to the public, even where the broadcast signal is free-to-air and the retransmission covers the same area of reception as the initial transmission.
Infringement occurs when the retransmission either reaches a new public or employs a different technical means than the initial transmission. This is the case when a broadcast originally transmitted on air, satellite or cable is retransmitted over the internet. However, simultaneous retransmission to the same public by the same technical means does not constitute communication to the public and does not require fresh authorisation by the rights holders.
The decision leaves unanswered the question of whether a broadcaster that transmits the signal simultaneously on air (or on cable) and on the internet is protected against unauthorised live streaming retransmission on the internet. The answer is clearly in the affirmative if the access to the original internet broadcast is restricted by paywall or other technical means (e.g. geo-blocking).
This is because the streaming retransmission would either reach a new public (if the signal is taken from the internet transmission) or employ a different technical means (if the signal is taken from the air or cable or satellite transmission). However, when the access to the initial internet transmission is not restricted, it seems inevitable to conclude that no new communication to the public occurs when the signal is retransmitted by unauthorised third parties, or at least not under the argument developed in TVCatchup.
Communication to the public by hyperlinking
A key role in the illegal IPTV environment is played by ‘link aggregators’; these are services that collect, index and make available links to streaming content spread on other sites (e.g. cyberlockers or live-streaming providers). In GS Media, the CJEU has determined the conditions upon which linking to another site where copyright-protected content is made available amounts to an infringement. These are: 1) the copyright owner did not authorise the making available on the initial website, and 2) the hyperlinker had knowledge of the illicit nature of the making available.
Such knowledge can be either ‘actual’ (i.e. the hyperlinker has received notice by the rights holder) or ‘constructive’. In determining constructive knowledge, a relevant factor is the profit-making nature of the hyperlinking. Ultimately, this determination can only be done on a case-by-case basis and is left to courts of the Member States. In cases of illegal IPTV, infringement depends on establishing that the hyperlinker (for example, the aggregator of links to streaming providers) had knowledge of the infringing content. The requirement is easy to meet in most situations.
Framing
A different scenario is presented when the audiovisual content that is made available on a website is not just linked but incorporated as such on another website. This method is known as ‘framing’. In Bestwater, the Court of Justice held that framing has the same legal effect of linking, in that it does not constitute communication to the public if the audiovisual content was made available on the initial website to the whole internet public, without restrictions, with the authorisation of the copyright holder.
In this case, the defendants framed on their websites a video that the claimant had uploaded on YouTube, and the court found no infringement. Arguably, the ‘Bestwater defence’ applies by analogy in case the framed audiovisual content is streamed live (instead of on-demand), subject to the condition that the content was communicated to the whole internet public without restrictions, such as paywall or geo-blocking.
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