Streaming – an infringement of copyright?

March 10, 2017

Streaming is a wide spread concept which has resulted from developments in modern technology, with services such as Netflix, Spotify, Sky and BBC iPlayer having a huge impact. These companies are able to allow streaming of their services because they pay a huge amount to buy the rights to broadcast to you. The catch-up services [such as BBC iPlayer] fall under Section 73 of Copyright, Designs and Patents Act 1988 (CDPA) which relates to re-broadcasting. Under this legislation, re-broadcasting of a previous work is permitted where the owner of the work has consented to its re-broadcast.

To allow for protected works to be reproduced, the owner’s permission is required [this will generally involve the payment of a royalty fee based on a percentage of the revenue produced or an annual/monthly subscription]. It is always recommended that any agreements to this effect are fully documented through licencing agreements. This is something which we have experience in negotiating and drafting, and can advise and assist with.

The author of a work may differ from the owner of any intellectual property rights (IPR). This is prevalent in an employer/employee relationship where works have been produced during the course of the employee’s employment. If an employee of a company [for example the BBC] produces a broadcast in the course of their employment, then whilst they will remain the author of the work, the ownership will automatically belong to the BBC. This principle can vary when consultants and independent contractors are employed and therefore should be expressly contained in their services agreement.
Do streaming services infringe the owner’s copyright?

Artists, producers and directors etc. will be pleased to note that services such as Netflix, Spotify, Amazon and Sky negotiate with the respective owners of the works for permission to reproduce their content. These services will have entered into licencing agreements which permit them to reproduce protected works and broadcast them to members of the public. It is for this reason that users have to pay a monthly subscription fee or pay per view.
Where does this leave companies such as TVCatchup and Showbox?

This question has recently arisen in the English Courts and has gone as high as the Court of Justice of the European Union (CJEU).

This decision has found that TVCatchup (after 6 years of existence) did not obtain the necessary permission from the respective owners of the IPRs. Broadcasters including ITV, Channel 4 and Channel 5 brought the action against TVCatchup under the CDPA on the basis that TVCatchup was infringing their IPRs by broadcasting without the owner’s permission.

The outcome was one which aimed to protect the high value of an author’s IPRs, and as such, found TVCatchup to be infringing. This was on the basis that their service amounted to a ‘communication to the public’ [which is not permitted under the CDPA] without the owner’s consent.

Previous users of TVCatchup’s services may now find that their services are no longer available as a result of the above decision.

It is my view that for services such as Showbox, they may well find themselves subject to a similar action and find that their services are impacted in the near future.

Should you have any queries relating to copyright subsistence or infringement, please do not hesitate to contact our Advisory and Dispute Resolution department for a free telephone assessment.

The information provided in all of our blogs reflects only a narrative of some elements to consider on the topic. The blogs do not contain considered legal advice and should not be relied upon as advice. Please see our website terms and conditions for full details of our disclaimer. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.

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