The High Court has held that a service enabling users, via a website or app, to access internet music radio stations around the world had infringed copyright by communicating copyright works to the public.
Infringement of copyright occurs when there is communication to the public of a copyright work (Article 3, Copyright Directive (2001/29/EC); section 20, Copyright, Designs and Patents Act 1988) (CPDA) (Article 3).
The provision of a clickable link to a work which is freely available on a website does not constitute a communication to the public of that work (Svensson and others v Retriever Sverige AB, see News brief "Linking and framing copyright material: guidance at last", www.practicallaw.com/4-558-3665).
It is immaterial that when an internet user clicks on a link to access a work, the work appears in such a way as to give the impression that it is appearing on the site on which the link is found, although in fact that work comes from another site, for example by means of embedding (BestWater International GmbH v Michael Mebes and Stefan Potsch C-348/13).
Posting a hyperlink to a work which has been made freely available on another website without the rights holder's consent will constitute a communication to the public if the links were provided in the pursuit of financial gain. If so, it would be presumed that the person posting the links knew the illegal nature of the publication of the works on the other website, so that copyright was infringed,, unless this presumption was rebutted (GS Media BV v Sanoma Media Netherlands BV and others, see News brief “Hyperlinking to unauthorised content: ECJ imposes conditions”, www.practicallaw.com/2-633-7919).
The re-posting, on a website, of a photograph previously posted on another website without any restriction preventing it from being downloaded and with the copyright owner's consent constitutes a communication to a new public (Land Nordrhein-Westfalen v Dirk Renckhoff, www.practicallaw.com/w-016-7247).
W held exclusive licences to the copyright in sound recordings of music. T operated an online platform that enabled users to access over 100,000 internet radio stations broadcasting in multiple countries around the world. The service was available via a website and an app, and allowed users to search for, browse and play audio content. The radio station content was chosen by the station, rather than T, and the station stream passed directly from the station to the user, rather than via T, but from a user perspective the content was framed within T's app/website, and advertisements were served (organised by T) while streaming.
W alleged that T required a licence from them and was in breach of section 20 of the CDPA for communicating their copyright works to the public. Four sample categories of music radio station were considered:
- Stations licensed by the collecting society, P, in the UK (category 1).
- Stations not licensed by a collecting society in the UK or elsewhere (category 2).
- Stations licensed for a territory other than the UK (category 3).
- Premium stations created by T itself (category 4).
T argued that it provided nothing more than a directory or search engine which linked users to websites containing relevant content.
The court held that there was infringement in relation to categories 2, 3 and 4 but not in relation to category 1.
T's service as a whole was targeted at the UK, so UK copyright law applied.
A conventional search engine provided a service on which the functioning of the internet depended. T's service operated by providing and indexing hyperlinks to users, but it provided much more than a conventional search engine service. It intervened directly in the provision of the links to the streams in a manner which neither conventional search engines nor hyperlinks on conventional websites did. T's activities amounted to an act of communication of the relevant works, and that act of communication was to a public, in the sense of being to an indeterminate and fairly large number of persons.
The works in category 3 had already been subject to an act of communication to the public before T's intervention, and it was appropriate to deem the rights holder's consent. The UK public to whom T's act of communication was addressed could not be said to have been taken into account in relation to the first act of communication, however, as the category 3 stations were only licensed in other territories. So T's act of communication was to a new public and would be unlawful unless licensed. For category 2 stations the initial act was not a relevant act of communication to the public, and T would infringe if it posted the links with actual or presumed knowledge that the works had been placed on the internet without permission. It would be reasonable for T to carry out checks to verify whether the work was uploaded by consent. A presumption of knowledge arose, which was not rebutted by the fact that T required all internet radio stations to give a warranty that they held the necessary licences. The provision of category 4 streams, which were created exclusively for T, amounted to an act of communication to the public and was an act of infringement. For category 1, there was a prior act of communication as with category 3, but the category 1 stations had already been licensed for the UK by W, so there was no new public and therefore no infringement.
As T’s separate app contained an integrated recording function that app should be treated as a new and different technical means from that by which the original internet radio station was provided, and infringed copyright in relation to all categories of stations. Individual users of the app who had made recordings would have committed acts of infringement under section 17 of the CDPA.
The providers of sample radio stations in categories 2, 3 and 4 infringed copyright when their station was targeted at the UK by T. T authorised the infringements of the category 2, 3 and 4 radio stations. It was T’s activity that made them available to the public in the UK, and T was directly responsible for the stations being listed as part of its service. It had also authorised the infringements carried out by users making recordings using the Pro app and was liable as a joint tortfeasor for all infringements by users and stations.
This was a significant test case on the role of online platforms that aggregate links to other sites containing copyright works, providing guidance on lawful practice. It was the first case to consider whether providing links to streamed radio content featuring sound recordings infringes copyright in the latter works. Svensson and GS Media had not focused on a situation in which a link was provided to a stream in which a work might feature in due course. Nor had they considered the question of works which had been placed on the internet with a territorially-limited consent (category 3) since Svensson contemplated a scenario where works were made available with wide consent, and GS Media where no consent had been given at all.
Balancing the freedoms of expression and information of those publishing on the internet, and the rights of IP rights holders, T’s activities were found to be not mere hyperlinking, nor provision of a conventional search engine. Although individual users could lawfully access non-UK radio stations, T crossed a boundary by aggregating the content linked to, framing it, commercialising links and repackaging them to facilitate this.
Case: Warner Music UK Ltd v Tuneln Inc  EWHC 2923 (Ch).
First published in the January & February 2020 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.