The UK TV re-streaming site TVCatchup may be partially illegal, a judge has provisionally ruled. But the judge has left avenues of defence open to the site, while final outcome will depend on developing case law and a European judgement.
ITV (LSE: ITV), Channel 4 and Channel 5 had brought a copyright case against TVCatchup, which re-transmits live UK digital channels over the web.
Mr Justice Floyd has provisionally ruled that the site does not reproduce substantial parts of the channels’ broadcasts.
But he is reserving final judgement on this until the outcome of a case in which the Premier League is suing the maker of boxes which decode foreign TV signals carrying overseas broadcasts of Premiership matches in to the UK.
The judge provisionally ruled TVCatchup does reproduce substantial parts of the films channels carry.
But he is referring this matter to the Court of Justice of the European Union.
The judge is also awaiting what the Premier League verdict says about “temporary copying”, a defence TVCatchup had used in its case.
But he has backed TVCatchup’s defence that, under section 73 of the Copyright, Designs and Patents Act 1988, it is allowed to re-transmit broadcasts over cable. This, however, would mean TVCatchup is not allowed to operate over mobile, the judge said.
The broadcasters issued a joint statement to paidContent:
“ITV, Channel 4 and Channel 5 welcome the provisional judgment that the TVCatchup service infringes the copyright in our broadcasts and programmes.
“The judge dismissed the TVCatchup argument around invalid implementation of the legislation and came out strongly in support of our case.
“We fully expect the judgment of the European court relating to the FA Premier League to agree with our views and reserve the right to pursue any site or service we believe to be infringing our copyright or using our content in an unlicensed, illegal capacity.”
We have asked TVCatchup for its response.
Fair to say, this isn’t over yet.
Update (Aug 10): TVCatchup has now given us its response…
“TVCatchup is delighted by the landmark ruling of the High Court, confirming after three years of litigation that TVCatchup’s real-time streaming of the UK’s main free-to-air channels, on both web and mobile, is lawful and does not infringe copyrights.
“Whilst the judgment includes a referral to Europe in respect of some of the less popular channels broadcast by ITV, Channel 4 and FIVE, such channels represent a small portion of TVCatchup’s viewing figures and are insignificant compared to the leading channels covered by the High Court’s ruling on s73 of the CDPA in TVCatchup’s favour.
“Whilst it would be premature to anticipate any outcome to a process that could take many years, TVCatchup has every confidence that its position on the minority channels will also ultimately be upheld.
“In the meantime, TVCatchup remains one of the most popular websites in the United Kingdom, recently ranked as having the longest viewing time per user of all UK video destinations by Neilsen VideoCensus. TVCatchup has over 5m regular users of its web services, with 4 million users also accessing via iPhone, iPad and Android devices.”
It’s notable that both sides’ statements give their own slants on what was actually a mixed judge’s conclusion, much of which is not final.