Case C‑275/15
ITV Broadcasting Limited and Others
v
TVCatchup Limited and Others
(Request for a preliminary ruling from theCourt of Appeal (England & Wales) (Civil Division))
(Reference for a preliminary ruling— Directive 2001/29/EC— Harmonisation of certain aspects of copyright and related rights in the information society— Article9— Access to cable of broadcasting services— Concept of ‘cable’— Retransmission of broadcasts of commercial television broadcasters by a third party via the internet— ‘Live streaming’)
Summary— Judgment of the Court (Fourth Chamber), 1March 2017
Approximation of laws— Copyright and related rights— Directive 2001/29— Harmonisation of certain aspects of copyright and related rights in the information society— Continued application of other legal provisions— Concept of ‘access to cable of broadcasting services’— National legislation providing that copyright is not infringed in the case of the immediate retransmission by cable, including via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations— Not included
(European Parliament and Council Directive 2001/29, Recital60 and Arts 5 and 9)
Article9 of Directive 2001/29/EC of the European Parliament and of the Council of 22May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.
As regards Article9 of Directive 2001/29, as the Advocate General noted at points37 and 38 of his Opinion, it is apparent from that provision, read in the light of recital60 of that directive, that Article9 is intended to maintain the provisions applicable in areas other than that harmonised by the directive. Indeed, an interpretation of Article9 of Directive 2001/29 to the effect that it permits a retransmission, such as that at issue in the main proceedings, without the consent of the authors, in cases other than those provided for in Article5 of that directive, would run counter not only to the objective of Article9, but also to the exhaustive nature of Article5, and, consequently, would be detrimental to the achievement of the principal objective of that directive which is to establish a high level of protection of authors.
It is irrelevant whether the protected works were initially broadcast on television channels subject to public service obligations. Indeed, there is no basis in Directive 2001/29 that would justify affording less protection to those channels’ content.
(see paras26-29, operative part)