tvcatchup.com may not be broadcasting – but it might be communicating

‘Communicating to the public’ may be becoming more fashionable judging by today’s decision in ITV v TVCatchup.

ITV, Channel 4 and Channel 5 are in the process of suing TV Catch Up Ltd for infringing their copyright by communicating their broadcasts to the public. tvcatchup.com streams more than 50 channels, making its money from the adverts that it places before programmes and around them as a frame. It’s name is a misnomer: it used to let you catch up by storing shows, but no longer – now it’s all live streaming.

Tvcatchup.com applied for summary judgment on the basis that it could not be defined as ‘communication to the public’ because it was not a ‘broadcast’. Section 20 CDPA (‘Infringement by communication to the public’) states that ‘communication to the public’ includes both (a) broadcasts and (b) making available to the public in such a way that they may access it at a place and time of their choice.

Both parties accept that tvcatchup.com doesn’t fit the definition of ‘broadcast’ in the CDPA, nor can viewers choose when they see the programmes. ‘So,’ the defendants said, ‘tvcatchup.com isn’t communication to the public.’

But the judge said that though ‘communication to the public’ includes broadcasts and on-demand, it can include other things too. (Also, just because tvcatchup.com isn’t a ‘broadcast’ didn’t mean it can’t infringe copyright in a broadcast.)

Anyway, does anyone know why both parties agreed tvcatchup.com doesn’t fall within the definition of ‘broadcast’?