TVCatchup II – Retransmission by cable not “exempted” in the InfoSoc Directive

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Last November, I reported on the GS Media case (C-160/15), which certainly gave rise to some debate. It appears that the CJEU is quite actively handing down judgments in the area of copyright. This is perhaps not too surprising, since the member states still have quite different national legislations and the harmonization from the EU is by no means exhaustive. Additionally, and more importantly, especially national copyright laws lag behind the rapid technical development, which is why many questions of interpretation may arise in national courts.

Only a few days ago, on 1 March, the CJEU handed down its judgment (C-275/15) in the case TVCatchup II. The national law in the UK included a provision, which roughly provided that copyright is not infringed in the case of immediate retransmission by cable. The relevant question from the UK court was “whether Article 9 of Directive 2001/29, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as covering and 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.”

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The GS Media decision and ‘communication to the public’?

The CJEU quite recently handed down its decision in the GS Media case (C-160/15, available here). In said case, the CJEU revisits the notion of ‘communication to the public’ of the InfoSoc directive. The case concerns a situation where the material has originally been placed on the internet without the consent of the copyright owner. If the content has been made freely available on another website with the consent of a copyright holder, there would usually be no ‘communication to the public’ (see e.g., the Svensson decision, C-466/12 available here).

In GS Media, the CJEU distinguished between i. non-commercial use and ii. use for profit. If the hyperlink is placed on a website that operates for profit, the person who posts the hyperlink has a duty to check if the content was originally placed on the web without the consent of the copyright owner. Further, if the website operates for profit, it is presumed that the posting is made with full knowledge of the protected nature of the relevant work and the potential lack of consent of the copyright owner. This presumption can however be rebutted.

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