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10 May 2021
TuneIn Inc v Warner Music UK Limited is a recent and relatively complex Court of Appeal judgment concerning the targeting of a web-based radio service and copyright infringement by an act of communication to the public under Section 20 of the Copyright, Designs and Patents Act 1988 (CDPA).
In brief, TuneIn Radio's platform provided links that enabled users in the United Kingdom to access the audio content of around 100,000 radio stations worldwide. TuneIn's web service also actively helped users to find appealing radio content – for example, by enabling them to search for stations playing tracks by their favourite artists and recommending stations to users based on their play history. TuneIn also provided a Pro app that enabled users to record music being streamed by radio stations on their mobile devices and replay it on demand.
Warner Music (and other claimants, including Sony Music), as owners of the copyright in a vast collection of sound recordings played on the various radio stations, brought proceedings for copyright infringement. At first instance, the High Court held that TuneIn's service was targeted at the United Kingdom and that, in respect of certain categories of radio station, TuneIn had infringed the claimant's copyright under Section 20 of the CDPA. TuneIn appealed, arguing that the High Court had erred in its application of the applicable law. The Court of Appeal dismissed the appeal on all but one issue.
Before embarking on its analysis of the issues, the Court of Appeal addressed an important question around the law applicable to the case. The European Court of Justice (ECJ) has developed a considerable body of case law on the applicable principles, including the now well-known judgments in Svensson (C-466/12), GS Media (C-160/15) and Renckoff (C-161/17). At the time of the Court of Appeal judgment, the Brexit transitional period had ended and the United Kingdom had exited the EU entirely. This begged the question of whether the Court of Appeal judges would choose to apply or depart from the existing ECJ jurisprudence.
The Court of Appeal noted that Section 20 of the CDPA is unaffected by Brexit by virtue of being "EU-derived domestic legislation" under Section (2)1 of the EU (Withdrawal) Act 2018. The Court of Appeal further noted that all but one of the ECJ's judgments on hyperlinking constituted "retained EU case law" under Section 6(7) of the Withdrawal Act. The Court of Appeal observed, therefore, that these judgments continue to form part of the domestic law of the United Kingdom post-Brexit and bind lower courts under Section 6(3) of the Withdrawal Act.
The Court of Appeal (and the Supreme Court) have recently been given the discretion to depart from retained EU case law. The Court of Appeal commented that such power should be exercised with great caution and on this occasion decided not to invoke it.
The Court of Appeal was strong in its tone on this issue and provided a variety of reasons for not departing from the existing ECJ case law. In particular, the Court of Appeal stressed the need for consistency of interpretation between the CDPA and the EU and wider international copyright framework. The court also commented that the existing case law was neither impeding nor restricting the proper development of the law on hyperlinking or leading to results which were unjust or contrary to public policy. The Court of Appeal believed that the ECJ had unrivalled experience in interpreting the difficult concept of 'communication to the public' and that "returning to the drawing board" on this concept would create considerable legal uncertainty. The court acknowledged that the ECJ case law was not without its academic critics but observed that this criticism was not all one-sided. For these reasons (and others), the Court of Appeal held that the case would be decided by reference to established ECJ principles.
It is noteworthy that the Court of Appeal also decided to give weight to an ECJ ruling on hyperlinking (VG Bild) that had been handed down after the Brexit transitional period had ended, despite having no obligation to do so.
Lord Justice Arnold undertook a detailed analysis of the ECJ case law in his judgment. Although the two other members of the Court of Appeal concurred with the law as stated, they each engaged in some undisguised criticism of this approach. Their concern was that this sort of exhaustive analysis would act as a 'freeze frame' of UK law, leaving judges unable to follow future ECJ rulings if they so wished. Criticism of this nature of a fellow judge is not only surprising and unusual, but also perhaps indicative of the strength of feeling in the Court of Appeal that retained ECJ case law should continue to have relevance in the United Kingdom.
Having decided to bind itself in this way, the Court of Appeal turned to a consideration of the legal issues in the case.
On the question of targeting of TuneIn's service, the Court of Appeal agreed with the High Court that the streams from foreign internet radio stations were targeted at users in the United Kingdom by virtue of TuneIn's overall service being so targeted. It was irrelevant to the question of targeting that foreign radio stations accounted for only a small percentage of listener hours in the United Kingdom.
The Court of Appeal also assessed whether TuneIn's service amounted to an act of communication to the public contrary to Section 20 of the CDPA. ECJ case law requires two cumulative criteria to be established – specifically, a "communication" of the work (in this case, sound recordings) to a "public". Critically, where the alleged infringing communication of the work is by the "same technical means" as the original communication, the second communication must be to a "new public".
The appeal centred on two categories of radio station accessible via the TuneIn service – specifically, radio stations not licensed in the United Kingdom or elsewhere (Category 2 stations) and stations licensed elsewhere but not in the United Kingdom (Category 3 stations). The High Court had held that providing links to these stations was copyright infringement by TuneIn. The Court of Appeal agreed.
In respect of the unlicensed Category 2 stations, the Court of Appeal agreed that the owners of copyright in the sound recordings played on those stations had never consented to their works being communicated to the public. TuneIn's service was, therefore, an initial act of communication. This was copyright infringement under the criteria in GS Media as TuneIn had failed to check diligently whether the radio stations were licensed. This meant that it had presumed knowledge (not rebutted) that the sound recordings had been made available on the Internet by the unlicensed radio stations without the copyright owner's permission.
In respect of the Category 3 stations, the High Court held that the original communication of the works was properly licensed, meaning that the permission of the owners of copyright in the sound recordings had been properly obtained. However, TuneIn's service communicated those works to a new public (ie, the UK public) not taken into account by the rights holders when permitting the initial communication in a foreign jurisdiction (in effect, the consent was territorially restricted). This amounted to copyright infringement. The Court of Appeal agreed with this analysis.
The Court of Appeal tackled the difficult question of who was the public taken into account by a copyright owner when they initially permitted their work to be published online. Did this include the entire internet user base or just visitors of the specific webpage on which the work was initially posted? ECJ judgments (specifically, Svensson and Renckoff) appeared contradictory on this issue. The Court of Appeal said that it was necessary to consider the second act of communication when determining the public deemed to have been taken into account by the copyright holder when first permitting the communication of their work. The Court of Appeal confirmed that 'communication' and 'public' should not be considered separately but holistically together.
TuneIn also appealed the High Court's decision that its Pro app was a different technical means to the original web link communication, such that the requirement of a new public before there could be copyright infringement was unnecessary. The Court of Appeal overturned the High Court's ruling on this issue, finding that a web link and app constituted the same technical means. The more sophisticated features of the app (including the ability to record) did not justify a finding that it was any different from a web link. This finding was significant as it meant that TuneIn was not liable for copyright infringement in respect of certain UK-based radio stations. The finding is also likely to be significant in subsequent cases where an app is the means of communication of a work.
The following are key takeaways from this case:
For further information on this topic please contact Aumair Qayum or Gill Dennis at Pinsent Masons by telephone (+44 20 7418 8250) or email (email@example.com or firstname.lastname@example.org). The Pinsent Masons website can be accessed at www.pinsentmasons.com.
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