“Marconi plays the mamba, listens to the radio”: should online radio be built on rock n roll?
Internet radio has come a long way since Starship’s hit song “We Built This City” in 1985. Rather than being confined by digital file formats and software reliability, content can now be accessed almost instantly. online all over the world. But should we? What about copyright? These issues were explored in the recent decision by TuneIn Inc v Warner Music UK Ltd (2021 WL 01148260 (2021)) in which the Court of Appeal considered whether TuneIn (an online radio aggregation and categorization service allowing UK users to access global radio stations broadcast over the Internet) was responsible for the copyright infringement.
The key question was whether the hyperlinks to UK and overseas radio stations, provided by TuneIn, constituted the restricted act of ‘communication to the public’. The respondents (exclusive copyright owners/representatives of the sound recordings of the music broadcast) argued that TuneIn required a license for the sound recordings from foreign radio stations which were not authorized to receive them in the UK , and therefore infringed their UK copyright law.
Court of Appeal Decision
The Court of Appeal considered whether TuneIn’s actions constituted: (i) a “communication”; (ii) to the “public”; and (if applicable) (iii) whether there was a “new” audience.
Communication to the public includes the right of “making available”, and therefore includes potential transmissions. Hyperlinks have such potential. The Court of Appeal clarified that the (factual) issue of how the hyperlink was used has a significant bearing on the assessment of the “communication” issue. At first instance, Birss J singled out TuneIn’s conventional search engines, whose platform functionality went beyond simply providing users with hyperlinks. The Court of Appeal agreed – the TuneIn services were a separate act of communication.
The case also sheds welcome light on the assessment of a “new audience” in cases of territorial copyright issues. It reconciles EU case law (Renckhoff and Svensson) specifying that the main point is to assess the consent given (ie the “public” taken into account) by the copyright holder for the initial communication. In the absence of evidence to the contrary, the Court of Appeal concluded “the audience that was considered by the copyright holder when making a work available on a websitewas composed of “the public who visit this siteand that, in the case of foreign radio stations (unlicensed in the UK), the audience for which TuneIn’s service was aimed would not have been taken into account in the local audiences envisaged. By contrast, UK radio stations already available for free in the UK were not targeting a new audience – so no infringement there.
The Court of Appeal allowed TuneIn’s appeal in part, agreeing that TuneIn was not liable for infringement by communication to the public in respect of licensed stations in the UK by providing the “Radio Pro” app ” to UK users with the check-in feature enabled. . In this respect, the High Court had confused the right of communication to the public with the right of reproduction. The mere possibility for the user to record the stream did not affect the original means of communication (provision of the hyperlink) nor the extent or nature of the “public” to which the rights holders consented. ; it simply meant that users who uploaded the recordings could infringe copyright themselves.
Take away food
- Communicate to the public: (i) an individualized evaluation with direct access to the protected work is not always necessary; (ii) “communication” and “to the public” are interdependent concepts; the nature and extent of the consent given by the rights holder (if any) will therefore be very decisive.
- Territoriality of copyright: the Court of Appeal noted the “conflict between the broad character of the right of communication to the public being part of the copyrights which are territorial rights… and the global and interconnected character of the Internet on the other hand”. As collecting societies continue to license musical works by territory, online music audiences (like rock and roll, with everyone listening everywhere) are becoming increasingly global.
- EU law: the case provides useful clarification and confirmation of the continued applicability of CJEU case law on hyperlinks and communication to the public – such an approach is “not preventing or restricting the proper development of the law, nor… leading to results that are unjust or contrary to public order”. It also shows that UK law attempts to ensure that operators of services such as TuneIn are good copyright citizens, in line with the approach of Article 17 of the EU Copyright Directive.
“…the Internet is global and users in the UK can…access hosted websites and published or streamed content…from anywhere in the world. Intellectual property rights, however, are territorial.