NEWS CJEU hammers streaming sites with TVCatchup ruling


Internet streaming companies must obtain broadcasters’ permission to re-transmit their copyrighted works to the public, the Court of Justice of the EU (CJEU) ruled in March.


Te CJEU was ruling on a dispute between a group of British commercial TV broadcasters, including ITV and Channel 4, and TVCatchup (TVC), which reproduces free-to-air TV programmes and films to computers and smartphones.


Te claimants sued TVC for breaching the copyright in their films and broadcasts, saying UK law prevents such a communication of works to the public.


In November 2011, the England & Wales High Court referred questions to the CJEU, as it was unsure whether re-transmitting works included in a TV broadcast constituted a “communication to the public”, as the relevant EU directive defines it.


Ruling on March 7, the CJEU first noted that because re-transmitting TV broadcasts over the Internet uses a specific technical means that is different from the original communication’s, the re-transmission must be considered to be a communication.


“Tat conclusion cannot be undermined by TVC’s objection that the making of the works available over the Internet ... is merely a technical means to ensure or improve reception of the terrestrial television broadcast in its catchment area,” the court wrote.


Te court added that TVC’s re-transmissions were aimed at all UK residents who have an Internet connection and a TV licence. “Tus, the re-transmission in question is aimed at an indeterminate number of potential recipients and implies a large number of persons. Consequently, it must be held that ... the protected works are indeed communicated to a ‘public’.”


TVC contacted TB&I with a statement that said: “TVC is here to stay, we may have relinquished some ground in a minor part of our battle, but the war has already been decided in our favour. We remain Europe’s first and only legal Internet cable service and the CJEU opinion affects only a handful of channels we carry.”


“It was a pretty straightforward ruling—there were no real surprises,” said Gareth Dickson, associate at Edwards Wildman Palmer LLP in London. “Te language of the directive is so broad that most people had thought that streaming would fall within the definition of a ‘communication’ of protected works.


“If you’re a streaming service that re-uses copyrighted works without permission, this ruling is bad news. But, fundamentally, it doesn’t rule out the development of new technologies to re-transmit works—it just means that the copyright owners cannot be excluded from decisions about re-using their content. Tat is absolutely fair,” he added.


HTC scores double victory in Nokia patent case


Taiwanese smartphone maker HTC scored two separate victories against Nokia in March in their continuing patent litigation in Germany.


Te District Court of Mannheim rejected Nokia’s claims that the Android licensor infringed two patents, saying its arguments were unconvincing.


Te ‘120 patent protects a “method for using services offered by a telecommunication network, a telecommunication system and a terminal for it”, which the Finnish company said was infringed by HTC’s distribution of the Google Play store, a mandatory feature of the Android platform.


Separately, Nokia claimed that light sensors on


HTC’s devices measuring the brightness of the environment infringed a ‘974 patent protecting an “electronic display device and lighting control method of same”.


Te patents are two of 45 inventions named in a suit that Nokia brought against HTC (as well as RIM and Viewsonic) in the US and Germany, in May 2012.


10


Since then, the March rulings are the first to cover any of the named in either country.


HTC said that Nokia is trying to “extract


unwarranted licensing royalties from Android handset manufacturers” and it will continue trying to invalidate both patents before courts in Germany and the UK.


Nokia said it disagreed with the court’s decision and was “considering its options”, adding: “As we said in May 2012, we took these actions to end HTC’s unauthorised use of our proprietary innovations and technologies.”


Nokia was expected to press on with its remaining claims against HTC in Germany—believed to number about 29—with the next ruling in the dispute, which was set for March 19 at the same court in Mannheim.


Te ruling doesn’t change the overall picture dramatically, said Hosea Haag,


Trademarks Brands and the Internet Volume 2, Issue 2


a lawyer at Ampersand in Munich, noting that Nokia has asserted a large number of patents against HTC.


He said he believes Nokia, which was the leading mobile phone maker until the dawn of


the


smartphone, is using its patents in an attempt to boost sales of its current phones as they compete against the likes of Apple and Samsung’s.


Germany has become an increasingly important battleground in the so-called smartphone wars in the past three years. Apple, Samsung, Nokia, Microsoſt and Google-owned Motorola Mobility have all either filed or defended against patent claims in the country.


Haag said German courts are known for handing down fast and reliable decisions in patent


Rebecca Swindells, partner at Field Fisher Waterhouse LLP, said: “Had the court found in TVC's favour, the ruling would have struck at the very heart of broadcasters’ business models and indeed at the principles of copyright law, which enable copyright owners to control the communication and exploitation of their works.”


Te most interesting conclusion is that there is no need for communications to be to a ‘new’ public, said Bonita Trimmer, associate at Wragge & Co LLP. “Tis was a key non-infringement argument for TVCatchup—that people using its services could watch the very same free-to-air-programmes on their licensed TV sets at home in the UK, and therefore, the public it reached was the same public as the claimants’ own communications.


“Tis ‘new public’ point was regarded as important in other cases involving satellite TVs in pubs and TVs in hotel rooms. Te reason for the CJEU taking a different approach here is that TVC’s communication was transmitted by a different ‘technical means’


(Internet streams) from the


original authorised communication (satellite TV broadcast),” she said.


Te case will now return to the England & Wales High Court, which should rule in line with the CJEU’s decision. 


cases, particularly because under


its bifurcation system, infringement and validity are handled separately. Tis means, unlike in the UK, courts do not scrutinise the validity of patents when they are alleged to have been infringed.


www.worldipreview.com


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44