This month, Warner Music and Sony Music won their copyright case against TuneIn, a service that enables users (via an app or website) to access more than 100,000 internet music radio stations around the globe. The court found that TuneIn had communicated copyright works to the public in a way that infringed section 20 of the Copyright, Designs, and Patents Act 1988 (CDPA).

 

Facts of the case

Together, the claimants had exclusive copyright licences in sound recordings of music for more than half the market for digital sales of recorded music in the UK, and around 43 percent globally.

In the case, TuneIn argued that it provided nothing more than a directory for radio stations and therefore did not need a licence from the claimants. Users were not redirected to the relevant radio station website and would see advertisements provided by TuneIn.

The court considered four sample categories of radio station:

  1. stations licensed in the UK;
  2. stations not licensed in the UK or elsewhere;
  3. stations licensed for a territory other than the UK; and
  4. premium stations, created exclusively for TuneIn.

 

Judgment

Following Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2013] EWHC 3479 (Ch), and the legal principles of communication to the public, the court identified the following:

  • Assessment of whether a party’s actions amounted to a communication to the public was an individualised and case specific assessment which had to be carried out as a whole.
  • Providing a link was capable of being “communication”, even if the link was not selected, as it makes the works available.
  • An initial posting done with the rights holder’s consent was an act of communication to the public. Subsequent acts of communication had to be analysed with that in mind.
  • Initial postings without consent were not relevant acts of communication to the public. Re-posting a work on another site was an infringement, but linking to the first posting was an act of communication that was only an infringement if the poster knew or ought to have known that the original posting was without consent.
  • Where the initial communication was without consent and the knowledge of the person posting the link was material, people acting for financial gain would be presumed to have the requisite knowledge but could call evidence to rebut that presumption.

 

Judgment and application to the sample categories

Following an assessment of UK copyright law, the High Court ruled that:

  • Under category 1 (stations licensed in the UK), the unlicensed provision to UK-based users of radio stations already licensed in the UK was not an infringement of section 20 of the CDPA because despite being an act of communication to the public, there was no ‘new’ public so the territorial element was not breached.
  • The unlicensed provision to UK-based users of radio stations that are not licensed in the UK, or not licensed at all, is an act of communication to the public which infringes copyright. Therefore, categories 2, 3, and 4 were an infringement of the law.
  • Category 3 (stations licensed for a territory other than the UK) were an infringement because although there was already an act of communication to the public prior to TuneIn’s intervention, the public to whom TuneIn’s act of communication was addressed could not be said to have been taken into account in relation to the first act of communication.
  •  Category 2 stations (stations not licensed in the UK or elsewhere) could not be said to be in a better position than a category 3 station. Alternatively, the initial act was not an act of communication to the public, and TuneIn would infringe if it posted the links with actual or presumed knowledge that the works had been placed on the internet without permission.
  • A further element that was called into the proceedings was TuneIn’s record feature, which acted as a ‘download on demand’ service. Individual users of the app who had made recordings would have committed acts of infringement under section 17 of the CDPA. However, some (but not all) would have fallen within the defence in section 70 for recordings made in domestic premises.

 

Comment

Unsurprisingly, Sony Music welcomed the judgment, stating the decision was a victory against blatant copyright infringement in the UK, depriving music creators of compensation for their work, and giving TuneIn an unfair competitive advantage in relation to licensed webcasters that honour their legal obligations.

In contrast, the judgment has been strongly criticised by TuneIn and it will be interesting to see if it will be appealed. For now, though, it is clear that even where a website does not transmit or store music, it will need to be licensed, unless the rights holder has already consented.

 

This article was written by our paralegal Francesca Bugg

 


 

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