Summary

A service enabling users, via a website or app, to access internet music radio stations around the world had communicated copyright works to the public contrary to the Copyright, Designs and Patents Act 1988 s.20 where the radio stations were not licensed in the UK or elsewhere, where they were licensed for a territory other than the UK, or where they were premium stations created exclusively for the service.

Facts

The claimants claimed that the defendant had breached their copyright in sound recordings of music.

The claimants held exclusive licenses to copyright in sound recordings of music and together accounted for more than half the market for digital sales of recorded music in the UK and about 43% globally. The defendant operated an on-line platform providing a service enabling users to access over 100,000 internet radio stations around the world. The service was available via a website and an app, and enabled users to search for, browse and playback audio content. The user was not taken to the radio station's website, and would see advertisements provided by the defendant while streaming. The claimants claimed that the defendant required a licence from them and was in breach of the Copyright, Designs and Patents Act 1988 s.20 for communicating their copyrights works to the public. Four sample categories of music radio station were considered: stations licensed in the UK (category 1), stations not licensed in the UK or elsewhere (category 2), stations licensed for a territory other than the UK (category 3), and premium stations (category 4).

The defendant argued that it provided nothing more than a directory or search engine which linked users to websites containing relevant content.

Held

Whether the defendant targeted the UK - The defendant's service as a whole was targeted at the UK, therefore UK copyright law was engaged (see para.27 of judgment).

• Communication to the public, legal principles - In addition to the principles summarised in Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2013] EWHC 3479 (Ch), the court identified the following further principles, Paramount applied (paras 109):
• The 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 to a work was capable of being an act of communication to the public, even if no one actually selected the link, because it made the work available, Svensson v Retriever Sverige AB (C-466/12) EU:C:2014:76, [2014] Bus. L.R. 259, [2014] 2 WLUK 451 and GS Media BV v Sanoma Media Netherlands BV (C-160/15) EU:C:2016:644, [2016] Bus. L.R. 1231, [2016] 9 WLUK 124 applied.
• If the initial posting of the work was done with the rights holder's consent, it was an act of communication to the public and any subsequent alleged acts of communication to the public had to be analysed with that in mind. For a second act of communication to the public on the internet to be an infringement, there had to be a new public, and for that to be determined it was necessary to work out what public had been taken into account when the first act of communication took place. That question could not be answered without knowing the nature of the subsequent act of communication which was alleged to infringe copyright, Svensson and Land Nordrhein-Westfalen v Renckhoff (C-161/17) EU:C:2018:634, [2018] Bus. L.R. 1815, [2018] 8 WLUK 56 applied.
• An initial posting without consent was not a relevant act of communication to the public. Re-posting the work on another site would be an infringement, but putting up a link to the first posting was an act of communication that was only an infringement if the person posting knew or ought to have known that the original posting was without consent. That followed from striking a balance between the rights of the copyright owner and the freedoms of expression and information.
• Where the initial communication was without consent and the knowledge of the person posting the link was material, persons acting for financial gain would be presumed to have the requisite knowledge but could call evidence to rebut that presumption. For persons acting not for financial gain, the presumption was reversed and they would be presumed not to have the requisite knowledge unless the contrary was proved. Either way, once the person posting the link was actually aware that the work was posted without the consent of the rights holder, they would commit an act of communication if they did not take down the link.

Whether the defendant communicated to the public - A conventional search engine provided a service which the functioning of the internet depended on. At a technical level, like any search engine, the defendant'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. The defendant'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 (paras 121, 125, 127, 130-131).

Application to the sample categories - The works in category 3 had already been subject to an act of communication to the public prior to the defendant's intervention, and it was appropriate to deem the rights holder's consent. The public to whom the defendant's act of communication was addressed could not be said to have been taken into account in relation to the first act of communication. Accordingly, the defendant's act of communication was to a new public and so would be unlawful unless licensed (paras 134, 141). A category 2 internet radio station could not be in a better position than one in category 3. Alternatively, the initial act was not a relevant act of communication to the public, and the defendant 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 the defendant to carry out checks to verify whether the work was uploaded by consent. On the facts, a presumption of knowledge arose, which was not rebutted by the fact that the defendant required all internet radio stations to give a warranty that they held the necessary licences (paras 144-149). The provision of category 4 streams, which were created exclusively for the defendant, amounted to an act of communication to the public and was an act of infringement (para.161). For category 1, there was a prior act of communication as with category 3, but the territorial element meant that there was no new public and therefore no infringement (paras 166-167).

Recording in the defendant's app - The app contained an integrated recording function which was a new and different technical means from that by which the original internet radio station was provided, and infringed copyright in relation to categories 1, 2 and 3 (para.178). Individual users of the app who had made recordings would have committed acts of infringement under s.17. Some, but not all, would have fallen within the defence in s.70 for recordings made in domestic premises (paras 186-191).

Liability of radio stations - The providers of sample stations in categories 2, 3 and 4 infringed copyright when their station was targeted at the UK by the defendant (paras 193-195).

Liability of defendant for infringement by authorisation and joint tortfeaser - The defendant authorised the infringements of the category 2, 3 and 4 radio stations. It was the defendant's activity that made them available to the public in the UK. In all the cases in category 4, and those stations in category 2 and 3 for which it had a bespoke contract, the defendant 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 app. The defendant had joint liability for all infringements (paras 201, 203-204).

Defences - The defendant could not rely on any of the safe harbour defences under Directive 2000/31 (para.213).

Judgment for claimants in part