Ruling on a test case in the High Court on 1st November 2019, Mr Justice Birss held that TuneIn, a service which gives users access to over 100,000 radio streams around the world via a website and an app, infringes license holders’ rights by providing hyperlinks to overseas radio stations, making copyrighted works available to a new section of the public by targeting UK users.
This is the latest UK case to deal with the difficult copyright implications of hyperlinking and offers some practical insight into where the UK courts consider the boundary lies between infringement and free expression.
Warner and Sony own or hold exclusive licenses to copyright in sound recordings which account for more than half the market for digital sales of recorded music in the UK and over 40% worldwide. TuneIn is a US company which operates an online platform called “TuneIn Radio”, available to users via a website or an app. TuneIn Radio connects users to works that are already available on the internet, without geographic or other restrictions, via hyperlinks. The user is not taken to the radio station’s website, but rather streams content via TuneIn’s interface and sees advertisements provided by TuneIn while streaming. It also operated (but has now discontinued in the UK) a recording service on its app that allowed premium users to listen to content later.
The claimants alleged that TuneIn had infringed their exclusive right as license-holders to communicate copyright works to the public under section 20 of the Copyright, Designs and Patents Act 1988 (CDPA). TuneIn claimed that because it does not store or transmit any music, and merely hyperlinks to radio streams freely available elsewhere, this could not be the case. TuneIn argued that the practice of hyperlinking was so fundamental to freedom of access to the internet that a finding for Warner and Sony would “break the internet”.
The High Court’s decision
The Judge divided the stations which TuneIn provides access to into four categories:
- Category 1 –stations licensed in the UK and freely available to UK users online;
- Category 2 – stations which are not licensed in the UK or elsewhere;
- Category 3 – stations licensed in a territory other than the UK and targeted at overseas users; and
- Category 4 – premium stations created exclusively for TuneIn.
Having considered each category in turn, the Court decided that in all but the first category, TuneIn was infringing the claimant’s right to communicate the works to the public because, by targeting the UK, TuneIn was making the works available to a “new public”.
TuneIn was also found liable for infringement by authorisation and joint tortfeasance when it provided the means for users to record radio streams to listen to at any time.
As websites without geographic restriction could potentially be accessed by users all over the world, UK copyright law would only be engaged if TuneIn targeted UK users. “Targeting” is used to allocate responsibility for activity on the internet under EU law. Highlighting the presence of UK focused advertisements that were displayed while users were in the website or app and the fact that users could select radio streams for towns and cities in the UK by reference to their location, the Judge found that TuneIn targeted UK users.
Communication to the public
Section 20 of the CDPA states that communication to the public of a work, either by broadcasting it or making it available to the public at a place and time as chosen by them via electronic transmission, is restricted by copyright. “Communication to the public” is interpreted broadly. It covers any transmission or retransmission of a copyrighted work to the public not present at the place where the communication originates or where the technical means of transmission are different. Thus there are three elements necessary to determine whether infringement under s. 20 has taken place:
- whether there has been a communication;
- who constitutes the relevant public; and
- what the means of transmission
A new mode of transmission?
The Court did not consider that TuneIn used a new mode of transmission, as both the original radio stream and the TuneIn Radio website made the works available via “the internet”, which had been found to amount to a single technical means by the CJEU in Svensson v Retriever Sverige AB Case C – 466/12.
An act of communication?
The Judge addressed the CJEU and UK Case Law where works had already been the subject of another communication. Where the work was initially made available with the consent of the copyright-holder, then in order for there to be infringement there needed to be a further act of communication which either engaged a “new public” or entailed a new mode of transmission. A “new public” would be engaged when the subsequent act of communication was made to an audience that exceeded the audience initially contemplated by the previous, authorised act. However, where the initial posting of the work had been without consent, this initial posting did not amount to a relevant act of communication and therefore sharing a hyperlink to the work risked amounting to a freestanding act of communication capable of infringement under s. 20, depending on what the defendant knew or ought to have known. The posting of a hyperlink to the infringing work will be treated as a fresh act of communication and amount to an infringement if the person posting it knows, or ought to know, that the original posting was made without consent. Where the person sharing the link is acting for financial gain, the Court will presume that they knew that the initial communication was without consent. For persons acting otherwise than for financial gain, the presumption is reversed and the person posting the link is presumed not to have the requisite knowledge unless the contrary is proved. In any event, once the person posting the link is in fact aware that the work was posted without the consent of the rights holder, they will commit an act of communication if they do not take the link down.
TuneIn claimed that it merely performed the role of a conventional search engine, a facilitator which provided access to streams of content available elsewhere. The Judge disagreed – he saw TuneIn as intervening directly to provide the streams to users in the UK. Linking to a copyrighted work that was previously available online and so theoretically accessible by UK users, but that might not be found by them otherwise, would “make it available” to the public. Birss J noted that TuneIn also monitors stream metadata to allow users to search for stations playing songs by specific artists and offers tailored suggestions of content for individual users. The way the site is presented means that from the user’s point of view, the content is provided to them at the TuneIn site, rather than redirecting them to the site of the radio stream. These differences were sufficient to make available copyrighted work in a way amounting to a communication, and any such communication is unlawful where a new public is engaged.
A new public?
The Judge considered whether the acts of communication that TuneIn’s platform made possible engaged a new public.
- Category 1 – there was no infringement because the UK stations were licensed under the relevant UK copyright and in granting the license the licensor would have foreseen that the content would be targeted at UK users – the same public that TuneIn targets.
- Category 2 – the initial communication of the works by the first streaming site had been without the consent of the rights holder, or at least had not fully complied with the rights regime under local law. As TuneIn is a profit making service, the presumption that it knew about this lack of consent was engaged and was not rebutted by the fact that TuneIn required all internet radio stations to give a warranty that they held the necessary licences. The making available of Category 2 stations was treated as a first act of communication to the public and was done so without the license holder’s consent, amounting to an infringement.
- Category 3 – the Judge distinguished Category 3 stations from Category 1 because of the territorial nature of copyright. While the rights holders had given initial consent to license the works to the original overseas radio stations, by targeting the UK public the TuneIn platform made the work accessible to a new public that would not initially have been taken into account by the rights holder in granting the license. There was therefore an act of communication to the public.
- Category 4 – these stations were created exclusively for TuneIn. The provision of these streams amounted to infringement because there was no prior act of making them available to the public and they were targeted at the UK with no license in place.
Practical implications for streaming sites and apps
The outcome is potentially troublesome for online aggregators who have previously relied on the fact that works available on the internet without any restrictive measures are potentially available to a “public” comprised of all internet users.
However, rather than “breaking the internet”, Birss J’s decision might be seen as merely “fine-tuning” it. The upshot of the Court’s decision is that online aggregators who want to benefit from advertising revenue are likely to face more rigorous and costly licensing requirements but will continue to be able to provide hyperlinks to protected works if they proceed with caution. Below are the key points to take away from the decision:
- Whether a hyperlink reaches a “new public” depends on who the initial and subsequent communications were targeted at. This has a territorial element.
- Even where the initial communication of the work was done with the full consent of the license holder or copyright owner, if the subsequent communication is targeted at a different public in a new territory then it is likely that this will infringe.
- The mere fact that content is not collected or stored on servers will not be a sufficient defence to allegations of copyright infringement.
- The way that content accessed via hyperlinks is framed and targeted to users is vital in establishing whether there has been an act of communication.
- It is unlikely that simply redirecting users to the web pages of individual radio streams would be sufficient to avoid the framing and targeting issue. The provision of recommendations to individual users based on algorithms and the collection of metadata relating to what is playing on a given station is likely to mean that even if the user interface changes, this model of online aggregation is likely to infringe under s.20.
- Aggregator sites may need to obtain licenses on a national basis in order to ensure that the licenseholder’s consent has been given to target each relevant audience targeted by the platform provider.