TV STREAMING
He said copyright legislation has “difficult and relatively vague” concepts which are open to interpretation and must be applied carefully to new forms of technology.
TVCatchup
Earlier this year the future of UK-based service TVCatchup, which has nearly 12 million registered users, was threatened by a Court of Justice of the EU (CJEU) decision in a case the outcome of which hinged on what constitutes a “communication to the public”.
Te case, brought by UK TV channels including ITV, Channel 4 and Channel 5, was referred to the CJEU by the England & Wales High Court in 2011.
Te channels alleged the service, which provides live streams of
free-to-air television over the
Internet, infringes their copyrights. TVCatchup countered, stating that viewers could watch only broadcasts they are legally entitled to by virtue of their TV licences.
Te CJEU found TVCatchup’s retransmission through a technical means that differs from the original broadcast means that it must be considered a “communication”, and is therefore in breach of European copyright law.
It ordered that all Internet streaming companies must obtain permission from the broadcaster before retransmitting copyrighted works to the public.
Tis is all well and good, but is rewriting the rules aſter every significant case a practical solution for a rapidly evolving medium?
Rebecca Swindells, partner at Field Fisher Waterhouse LLP in London, says that copyright legislation is “clearly
out of date”, adding:
“Te legislators simply cannot keep pace with technological developments and I suspect they never will.
“Tat is why copyright law is being developed through the courts rather than via the statute books, by IP judges faced with the unenviable task of interpreting out-of-date statute in light of very new technological advances and unforeseen situations.”
She says that while this has led to inconsistencies in decisions across the EU, judges are taking “a creative and sensible approach by standing back from the detail and going back to basic copyright principles which generally hold true even when applied to new technological scenarios not envisaged by the draughtsmen”.
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“A COPYRIGHT EXCEPTION ON PRIVATE COPYING IS DUE TO BE INTRODUCED TO THE UK, ALTHOUGH HOW IT WILL RELATE TO THE INEVITABLE RISE OF CLOUD COMPUTING REMAINS TO BE SEEN.”
“However, while it obviously makes make sense for legislators constantly to scrutinise current statute to see how it can be improved and updated, if they become overzealous in trying to draſt rules applying to each and every new technological development, there is a danger that the legislation will become over-complicated, unworkable and contradictory. Keeping it simple is best,” she says.
In a statement on its website aſter the CJEU ruling, TVCatchup said that the decision will not affect the majority of content on the site. Director Bruce Pilley said that
negotiations with many of
Swindells says we are a long way from establishing a global standard, although she understands the call for it
from a business perspective:
“Contrasting decisions from respected courts in the UK on the one hand and the US on the other in respect of near-identical issues makes it very difficult for businesses to implement a global strategy,” she says.
The future
From the so-called Betamax case, in which the US Supreme Court kicked off a new era of home recording by finding that recording TV shows for later viewing is not copyright- infringing, to Cablevision, changes in technology and the continued innovation of those behind the platforms will always test copyright laws to breaking point.
In addition, as we phase out using hardware to store content and increasingly opt for uploading to the cloud, copyright laws are going to be playing a game of catch-up.
the company was in advanced the major content
providers, which was “an acceptable price to pay for ending the years of uncertainty arising from the vexatious action of a handful of broadcasters”.
A global standard?
With global access to the Internet blurring jurisdiction lines, is the establishment of a firmer global standard feasible, and will it work?
“Te problem with global standards is that they tend to be interpreted locally,” says Nabor. “Even though you’ve got the same standard in multiple country jurisdictions, each individual jurisdiction interprets the application of that standard differently, and certainly we’ve seen that in IP issues throughout Europe,” he says, adding that these differences in interpretation also happen within the US.
“You’ve got one law, but it’s applied differently in one circuit vs the other: Aereo and Aereokiller are perfect examples,” he adds.
Staying vigilant is the best solution, he says, adding that the existing laws are “largely capable of handling most of what comes along”.
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Rendle says a copyright exception on private copying is due to be introduced to the UK, although how this provision will relate to the inevitable rise of cloud computing remains to be seen. He describes the cloud as the “elephant in the room” in the discussion about what private copying exception should cover.
“Te government is keen for cloud copying to be included in the exception, which poses great challenges to the rights owner community and business models generated around cloud sharing,” he says.
Nabor says the cloud is simply a different permutation of what has already existed for years, although it will change things: “It’ll provide another opportunity to examine the whole industry, but there’s precedent for this in the background, and hopefully it won’t set the entire industry on its head,” he says.
“My concern is what comes aſter the cloud.”
Rendle says that even if legislation were introduced to deal with the industry’s current concerns, it is unlikely it could deal with the challenges the future will bring. Is this the inherent nature of copyright? Will we ever be in a position where the statute can satisfactorily govern streaming activities?
“Inherent is the key word here,” says Rendle. “Te ingenuity of technology developers outstrips the flexibility and ability to react to legislatures.”
www.worldipreview.com
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