European Court of Justice, ITV Broadcasting Ltd and others v TVCatchup Ltd, C-607/2011

(1) The ECJ was asked to decide whether sites that link to streams are responsible for communicating copyrighted works to the public. In this case, the defendant operated a website based on free, unauthorised live streaming of television programmes, including those protected by the claimant’s copyright.

(2) The ECJ confirmed that any retransmission of a terrestrial television broadcast over the Internet constitutes a communication to the public. In particular, the concept of ‘communication to the public’ covers a retransmission of the works included in a terrestrial television broadcast (a) where the retransmission is made by an organisation other than the original broadcaster, (b) by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, (c) even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver. Also, the ECJ noted that it is irrelevant whether the retrasmission (i) is funded by advertizing and is therfore of a profit-making nature or (ii) is made by an organization which is acting in direct competition with the original broadcaster.