Chalk one up for broadcasters in the ongoing saga of Internet streaming: the European Union’s Court of Justice has issued a preliminary ruling, finding that streaming broadcast television via the Internet is a “performance to the public,” requiring copyright owner consent. The Thursday decision spells trouble for London-based TVCatchup, which had operated on the belief that it streams broadcast television to its subscribers non-publicly. So far in U.S. district courts, broadcasters have received a similar ruling in California (Fox Television Stations v. Aereokiller), but an opposite one in New York (ABC v. Aereo). What are key takeaways in the European decision? Examining the EU’s Information Society Directive, which seeks to harmonize copyright in the information society, the EU’s highest court concluded that the primary objective of the directive is to provide authors a high level of protection. Further, the court held that “communication to the public” should be interpreted broadly, per the express language of Recital 23 in the directive’s preamble (“all communication to the public not present at the place where the communication originates”). Finally, the Court found that it is irrelevant that TVCatchup’s users access the works through a one-to-one connection because a large number of the public still have access to the same works simultaneously.
The concurrent U.S. cases, Aereo and Aereokiller (see above), feature similar issues (breadth of the public performance right, whether a one-to-one connection using unique copies renders the performance non-public). One obvious distinction is that the EU directive places greater importance on protecting authors than U.S. copyright law, which seeks to strike more of a balance between creator control and public access. For the U.S. broadcasters awaiting appellate decisions from the Ninth and Second Circuits, the impact of this and other international precedent remains to be seen.