If you are operating a website which enables the public to watch live UK television on computers, smartphones and games consoles are you infringing copyright or any other intellectual property right?

Applicable legislation regulating the above includes:

-  The Copyright Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC)

The Copyright Directive harmonises copyright laws within the EU. The Copyright Directive contains provisions (i) preventing the direct or indirect, temporary or permanent reproduction by any means and in any form of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite; (ii) providing for an exclusive right for broadcasters of communication of fixations of their broadcasts to the public; (iii) exempting from the above prohibition temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process, and whose sole purpose is to enable either a transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter, and which have no independent economic significance provided that such acts do not conflict with a normal exploitation of the work or other subject-matter, and which do not unreasonably prejudice the legitimate interests of the copyright owner.

- The Copyright, Designs and Patents Act 1988:

The CDPA protects films and broadcasts. A broadcast is defined as an electronic transmission of visual images, sounds or other information, which is transmitted for simultaneous reception by members of the public and is "capable of being lawfully received by them"; or at a time determined solely by the person making the transmission for presentation to members of the public;

and which is not an internet transmission unless it takes place simultaneously on the internet and by other means or a concurrent transmissions of a live event or a transmissions of recorded moving images or sounds which form part of a scheduled programme service.

Copying a copyright work and communicating a copyright work to the public are prohibited acts unless they are carried out with the consent of the copyright owner.

"Communication to the public” include communication to the public by electronic transmission, and the broadcasting of the work; the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.

Although there is an exception providing that a literary work is not infringed by the making of a temporary copy which is transient or incidental, is an integral and essential part of a technological process and the sole purpose of which is to enable the transmission of the work in a network between third parties by an intermediary or a lawful use of the work, provided that it has no independent economic significance this does not apply where films are infringed.

The Act also contain exemptions which apply where a wireless broadcast made from within the UK is received and immediately re-transmitted by cable. It provides that copyright in a broadcast is not infringed to the extent that the broadcast is made for reception in the area in which it is re-transmitted by cable; and to the extent that, the broadcast is made for reception in the area in which it is re-transmitted by cable; but where the making of the broadcast was an infringement of the copyright in the work, the fact that the broadcast was re-transmitted by cable shall be taken into account in assessing the damages for that infringement.

In a recent case national broadcasters brought legal proceedings for copyright infringement against a company operating a website which enabled members of the public to watch live UK television on computers, smartphones and games consoles. Individuals had to first sign up and choose the stream of the programme being broadcast on the selected channel, after having watched an advertisement.

The service operated via a series of servers. The software created a separate stream for each user who was requesting a channel, so that any particular packet of data that left the final streaming server was addressed to an individual rather than to a class of users. No video stream was stored on any permanent storage medium; all the processing took place in volatile memory. However, each step of the process entailed the storage of a small amount of data from the video stream on the relevant server.

The national broadcasters argued that:

·         Copyright in the broadcasts and films was infringed by the communication of them to the public.

·         Copyright in the broadcasts and films was infringed by the making (or authorisation of the making) of transient copies of the broadcasts and films in the company’s servers and on the screens of users.

While the judge answered some points referred a lot to the European Court of Justice as follows:

·         The company was communicating films and broadcasts to the public, but he referred this question to the ECJ for a preliminary ruling.

·         The company was not reproducing a substantial part of the broadcasts in its buffers and on users' screens, but he referred this question to the ECJ for a preliminary ruling.

·         The company was reproducing a substantial part of the films in its buffers and on users' screens

·         The CPDA defence applied to the reproductions in the buffers but not on the screens

·         The company had a defence under section 73 of the CDPA in relation to regional services, except to the extent that these were to mobile phones or to areas outside the relevant region.

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