This copyright exception has been the focus of long-running and ongoing litigation between a number of public service broadcasters and TV CatchUp (TVC) over the online provider's interception and near-live streaming over the internet of public broadcasts. In October 2013, the High Court ruled that:
a website operator who intercepts and live-streams a TV broadcaster's signal on the Internet is "communicating the copyright works to the public", which must be authorised by the copyright owner, but;
TVC's streaming of public service broadcasts via the internet (but not via mobile networks to mobile devices) would be covered by the "cable retransmission" exception and not infringe copyright, as long as the streaming/retransmission was confined to users in the same region as the original broadcast.
More recently, the case has (for the second time) been referred to the Court of Justice of the European Union, and the English Court has sought clarification on whether the exception under s.73 is compatible with Article 9 of European Copyright Directive 2001/29/EC.
Our sister intellectual property blog – "SnIPpets" - has recently published a piece on the Court of Appeal decision in the TVC case.
Broadcasters and platforms are interdependent in the television delivery value chain which combines a wide range of content, a variety of business models, and a number of distribution technologies (and numerous device types). Platform operators generally offer a bundle of channels in exchange for either a one-off fee (such as the purchase of equipment) or on a subscription basis, and require content to be delivered on those channels to derive value. On the other side of the table, it is key to every broadcaster that their content reaches its intended audience, particularly as each broadcaster (the BBC being the exception) derives income from advertising or other commercial revenues - this has to be done through the platforms.
Within such a complex and high-value sector, the balancing act between the interests of the broadcasters; platforms; and the general public, requires careful policymaking and regulation to support those policies. It is on this basis that, the UK government has recently announced its intention to abolish s.73 CDPA.
DCMS points out that s.73 was introduced to support the development of analogue cable infrastructure in the 1980s/90s. Its view is that s.73 is no longer relevant in today's multi-platform/channel environment. DCMS has therefore put out a public consultation asking for views on the impact of getting rid of the s.73 exception, and how its removal might impact other policy options raised in the paper.
One possible result of the removal of s.73 is an increase in the flow of revenue from platform operators to broadcasters. However, the government recognises that in a complex industry this may not necessarily be the case. One thing that is likely is that broadcasters and platform operators will hold strong views on this topic, and that any change in the law will provide both opportunities and challenges for industry players.