The Broadcasting Right

In relation to broadcasting, the current right is delineated, aspects of infringement explained and, lastly, the right is contrasted by reference to important aspects of the previous cable programme right.

a) The Exclusive Right

51 As mentioned above, within the framework of the communication to the public right, broadcasts are specifically protected subject matter,¹¹⁵and care must be taken to separate such subject matter¹¹⁶ from the restricted act of broadcasting.

The current definition of ‘broadcast’ is 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, is transmitted at a time determined solely by the person making the transmission for presentation to members of the public.¹¹⁷ Excluded from this definition specifically are any Internet transmissions unless these are simultaneously on the Internet and by other means, concurrent transmission of a live event or transmissions of recorded moving images/sounds being part of a programme service offered by the broadcaster at scheduled times.

In respect of the above, this definition incorporates to a certain extent the previous definition of broadcasting by wireless telegraphy as well as the previous cable program service. The narrowly defined inclusion of specific Internet broadcasts, commonly defined as “streaming”, is a logical technological expansion of the classic definition of a broadcast by wireless means, such being close to the original subject matter in format. Moreover, it is exclusively the transmission/signal that is being protected.

b) Infringement

Definition of ‘Broadcaster’

Commentators have asserted that the definition of ‘broadcaster’, or the person potentially infringing the broadcast right, is not as clear as it should be.¹¹⁸ The current definition includes; persons transmitting the programme where such have any responsibility for its contents and, persons providing the programme which

115 CDPA 1988;s.20(1).

116 CDPA 1988;s.1(1)(b); the subject matter being the transmission, not the works that might be included.

117 CDPA 1988;s.6.

118 Copinger,(n91),[7-125].

52 had made arrangements with persons transmitting it as necessary for such.¹¹⁹ This is in contrast to the previous definition under the CDPA 1988 as originally enacted, which included persons; making the broadcast, broadcasting a work , including a work in a broadcast, where such had responsibility concerning any of its contents.

Moreover, where other persons provided any elements of the programme and made arrangements required for transmission with another transmitting it, such a person was also included under the definition of broadcaster.

References to persons “making” a broadcast or transmission have been dropped, which can be said to relate to the author of such. Currently therefore, it is possible that persons operating transmission equipment and those responsible for processing the programme into transmissions are covered, whereas those purely responsible for creating the programme content are not.¹²⁰ In commenting it must however be remembered that the current definition of a broadcast includes both wireless and cable transmissions, unlike the previous definition, which was aimed at wireless broadcasts by telegraphy.

Place Occurring

In defining the place occurring, broadcasts may be split into wireless and the cable.

Wireless broadcasts are currently made from the place where the programme carrying signals are processed into an uninterrupted chain of communication as long as such is under the control and responsibility of the person making the broadcast.¹²¹ This can be stated to be an “emissions” definition, which is a relevant since a broadcaster may incur liability for broadcasts originating in the UK, irrespective of whether the communication is actually receivable in a particular territory.

Broadcasts by cable are not defined in this respect in the CDPA nor in EU legislation. It is therefore possible that the emissions theory and/or reception theory would be operable.

119 CDPA 1988;s.6(3).

120 Exception;s.6A(3)(a) on satellite broadcasts.

121 CDPA 1988;s.6(4).

53 It remains to be added that rebroadcasting, meaning the relaying and retransmission of a broadcast is a separate act of broadcasting.¹²²

Given that the new definition of broadcasting incorporates the previous cable programme right, as mentioned, it is worth examining the latter.

c) The Previous Cable Programme Right

Previously Internet transmissions were capable of falling within the remit of the definition of cable programmes, and were thus protected under this category. The previous pre 2003 definition in CDPA 1988 s.20(c), somewhat circularly, defined infringement by broadcasting as broadcasting of a work or its inclusion in a cable programme service due to the copyright in either a literary, dramatic, musical or artistic work, a sound recording or film, or a broadcast or cable programme. This meant that the content of the cable programme need not necessarily be protected by copyright for the cable programme right to apply. It is worth in this regard, referencing two cases to analyse the previous cable programme right.

The first is Shetland Times v Dr Jonathan Wills¹²³ which, as the name suggests, concerned the newspaper called “The Shetland Times” and a news reporting service trading under the name “The Shetland News”. The newspaper claimant brought suit against the news reporting service defendant claiming not only infringement of its reproduction right in newspaper headings, but also infringement of its cable programme right. It is worth mentioning in this regard, that firstly, the case being decided in 1997, reference was made to the CDPA 1988 prior to the 2003 implementing amendments for the EUCD which, as mentioned above, amended the cable programme right. Secondly, Shetland Times was heard in the Court of Session’s Outer House. Lastly, Shetland Times concerned only an interim order and was thus not argued fully.

122 CDPA 1988;s.5A; see Case C-306/05 Sociedad General de Autores v Editores de Espana (SGAE) v Rafael Hoteles SA [2006] ECR I-11519 but compare to Football Association Premier League Limited v QC Leisure [2008] EWHC 1411 (Ch); (hotel rebroadcast/pub decoding &

display not a rebroadcast).

123 [1997]FSR607.

54 It was held¹²⁴ that the defendants had infringed s.20 of the CDPA by incorporating on their website headlines taken from the plaintiff’s website. The plaintiff’s headlines were classified as cable programs made available on the plaintiff’s website within the meaning of s.7 CDPA 1988 and the defendants website operated as a cable programme service also with the meaning of s.7, with the inclusion of the requisite headlines constituting infringement under s.20 CDPA 1988.¹²⁵

This approach was followed in Sony Music Entertainment (UK) Ltd v Easyinternetcafe Ltd¹²⁶ which concerned CDR burning facilities provided by Internet cafes at which customers downloaded materials onto private directories which then accessed by request and with consent by staff on hand for the purposes of burning the contents onto CDs. The claimants in this respect brought an action for a declaration that the service offered by the defendants in eight Internet cafes was unlawful since the defendants did not have licences to burn the claimants works onto CDs. The defendants argued that, despite admitting that the customers would be liable for infringement for unlicensed downloads of the claimants works, they themselves were not liable because a) the copying was involuntary and b) the act complained of constituted the making of a recording for private and domestic use of a “broadcast or cable program” for viewing or listening at a more convenient time, as permitted under the CDPA 1988 s.70 at that time.¹²⁷ With the remake, s.70 has since contracted with the reformation of the cable programme right.

The above mentioned fact that Internet transmissions were once classified as cable programs and that such could be exempted for private and domestic use in certain circumstances is a very important and noteworthy fact for this thesis. This is because, as the Easyinternetcafe decision highlights, service providers and most likely also ISPs/OSPs would greatly benefit from the operation of such an exception since this would prevent 3PCL on their behalf. In this regard the content providing

124 Ibid,607,609; Concerning the alleged infringement of the reproduction right concerning the headlines, it was conceded that headlines could be literary works.

125 CDPA 1988, s.7, at the time included subsection 2 which contained an exception from the definition of “cable programme service” aimed at exempting services which effectively operated as a communications network.

126 [2003]EWHC62.

127 CDPA 1988,s.70 (as enacted) “Recording for Time-shifting Purposes”.

55 industry has greatly benefited from the reformation of the cable programme right in this regard.

In asking whether the previous model of classifying Internet transmissions including any private use exception should be a model that ought to be reconsidered, the judge’s analysis in Easyinternetcafe must be critically examined.

In approaching the facts the judge in question decided to first determine whether the use had been private and domestic before considering whether or not the Internet was a cable program the purposes of the then s.70 CDPA 1988.¹²⁸ In stating that it was impossible for the defendant to make out a defence in this case in this regard, the judge highlighted that despite the burden of establishing copies for private for domestic use falling on the defendant, said had not produced any evidence to support such a supposition. Moreover, the actions of the defendants in the copying exercise for commercial gain were deemed to be “fatal to this defence”. The judge stated:

The copying is done by the defendant and the defendant is not copying it for the purpose of private and domestic use. It is copying for purposes of selling the complete CDR for five pounds. ... It does not seem to me to be relevant that the person for whom it is copied is going to use it for private and domestic use. If one pursued that to logical conclusions that would mean that any material on the Internet can be downloaded by a commercial organisation and that organisation could sell that download material to a customer, provided the customer asserted that it was for his own private and domestic use. That, to my mind, is not the mischief intended to be covered by the section.¹²⁹

The judge thus emphasised the fact that in his opinion, the section was aimed to cover individuals who themselves make copies for private use.¹³⁰

Having rejected the private use exception to the cable programme right, the judge stated it was unnecessary to rule on whether the Internet is a cable program the purposes of s.70 CDPA 1988. He did however cite with approval the decision in Shetland Times and expressly stated in obiter that ‘therefore if this question had

128 Sony Music, 305.

129 Ibid.

130 Ibid.

56 arisen I would have concluded that the transmission of the material via the Internet would be a cable programme service within s.70 CDPA 1988’.¹³¹

An important criticism of the Easyinternetcafe decision was penned by Kevin Garnett. Garnett first notes the similarity between the CDR service and a copy shop making photocopies at the request of the customer, where knowledge of what is being copied and for which purpose is irrelevant, given the strict liability nature of the tort in section 17(1) CDPA 1988 “copying of the work is an act restricted by the copyright” in the work. Garnet submits that by branding receivers of faxed information or Internet service providers as involuntary copiers the judge in Easyinternetcafe erred. Garnett notes that in both these cases the recipient is not a copier in any sense. “The copier is the person who is the proximate cause of the copy being made, which in its each case is the sender.”¹³²

Importantly for this thesis, Garnett sheds some light on how s.70 CDPA 1988 came to life. He notes that some of the reasons why the section causes difficulties¹³³ is because it was introduced as an “afterthought” in a late stage in the Parliamentary procedure, thereby arguably not receiving the scrutiny it perhaps should have been entitled to. In terms of the spirit behind the section this is stipulated as being a legitimisation of the widespread domestic practice of the taping of television programmes for timeshifting (off air recording). Interestingly Garnett notes that the CA 1956 exempted the making for private purposes a recording of a broadcast or cable programs, yet this exemption did not extend to the recording of copyright works included in such transmissions. Moreover, Garnett notes that “the government chose, however, not to grapple with the equally widespread and unlawful practice of “home taping”.

Thus Garnett agrees with the judge in Easyinternetcafe that it was not the intention of Parliament to introduce the wide exception argued for by the defendant, instead the widespread practice of off air recording was intended to be legitimised. At the same time the government also aimed to ensure compliance with the Berne three-step test, with a narrow exception. Concerning the issue of

131 Ibid, 306.

132 K. Garnett QC, The Easyinternetcafe Decision,2003,EIPR,25(9),426.

133 E.g. whether private and domestic use related to the maker’s own use or whether the defence also applies if a copy is made by one person for the private and domestic use of another. The word “convenient” in the exception was also difficult.

57 the judge’s acceptance of the proposition that a neighbour copying for another neighbour would fall within this exception, Garnett advocates that the exception should have applied exclusively to the person for whom the copy is made, since a distinction on monetary terms was not supported by the section in question.