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In Warner Music UK Ltd v Tuneln Inc  EWHC 2923 (Ch) (1 November 2019)) the High Court ruled that American radio app provider TuneIn Inc breached copyright contrary to Section 20 of the Copyright, Designs and Patents Act 1988 (CDPA).
The case considered the delicate balance between what the public can freely access through the internet and infringing someone else’s copyright. This balance was tested further when Judge Birss was asked to determine whether an app allowing users to access radio streams from around the world would infringe copyright attaching to sound recordings.
The Claimant, Warner Music, held exclusive licences to the copyright of recorded music accounting for almost half of digital sales in the UK and 43% globally.
The Defendant, TuneIn Inc, operated an online platform, facilitated via a downloadable app, that enabled UK users to search, browse, and play music from radio stations based around the world. Apart from those with a Premium ad-free subscription, TuneIn users would see adverts on their screen selected by TuneIn.
The Claimants argued that TuneIn breached their copyright in the music by broadcasting it to the public contrary to Section 20 of the CDPA. They advanced four categories of music radio station namely (1) stations licenced to play the music in the UK (for example BBC Radio); (2) stations not licenced in the UK; (3) stations licenced in a non-UK territory; (4) premium radio services.
TuneIn argued that it provided nothing more than a database of hyperlinks to content freely available on the internet.
Judge Birss held that TuneIn had breached copyright. It was held that providing a link was capable of being an act to a communication to the public according to established ECJ principles.
The Judge found that TuneIn’s service went beyond a conventional search engine such as Google and was more akin to Spotify. In determining this, the Judge considered the targeted nature of TuneIn’s service which provided users with an aggregate of links to various radio websites, both in the UK and abroad, that enabled users to search for music by artist and category and to link them to audio streams. The Judge held that it was irrelevant that the links did not necessary allow the user to play the music ‘on demand’. Rather, it was enough that the links directed users to websites making the work available – and therefore amounting to a communication to the public for the purposes of the CDPA.
In finding that TuneIn’s actions amounted to a communication of work to the public the Judge considered the four categories of music radio station and held that there was an infringement in each category, save for category 1 - stations licenced to play music in the UK.
Providing links to category 1 stations did not amount to infringement because TuneIn had already consented to the work being played in the UK. Interestingly, this territorial analysis was applied to category 3, namely licenced work in non-UK countries. It was held that although Warner Music had consented to the work being played by non-UK radio stations, TuneIn’s act of targeting the work to UK customers meant that there was a communication to a new public not originally considered during the first act of communication. Therefore, providing links to these stations did amount to copyright infringement.
The Warner case builds on previous ECJ authorities, most notably the principles set out in Svensson and others v Retriever Sverige AB (Case C-466/12)  Bus LR 259 and GS Media BV v Sanoma Media Netherlands BV (C-160/15) EU:C:2016:644 which held that providing a clickable link to content freely available on the internet could amount to a communication to the public.
The above authorities had not previously addressed the question of whether a link to streamed content where work would play in due course, as opposed to on demand, could amount to making that work available to the public. They also did not consider a scenario whereby a rights-holder’s consent to broadcast work was given in one jurisdiction, but not another.
The question of targeting to the public was a key consideration in this case. Judge Birss determined that whilst it was an inherent function of the internet that users could lawfully access non-UK radio streams (like those in category 3 radio stations) through conventional searches, the actions of TuneIn crossed the line by targeting the UK public by providing commercialised links to streamed radio content.
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