TuneIn thoroughly WARNERED!

As you may know, Warner Music and Sony Music had jointly brought a claim against TuneIn for copyright infringement. TuneIn is a service that enables consumers to access more than 100,000 radio stations around the world. Warner and Sony Music claim has been accepted by the courts who found that TuneIn services infringed the claimant’s rights under section 20 of the Copyright, Designs, and Patents Act 1988 (CDPA).

The reason the claim was first brought by Warner and Sony was that they have exclusive copyright licences in the music recordings for more than half the market for digital sales of recorded music in the UK and about 40% worldwide so with TuneIn in the picture this had a massive effect on Warner and Sony sales and rights they rely on through their licences.

As the claim was brought forward, TuneIn argued that it provided nothing more than a directory for radio stations and therefore did not need a licence from the claimants. However this argument was rejected by the courts as consumers would not be redirected to the relevant station website but would remain on the TuneIn platform and see their advertisements.

The court considered four sample categories of radio station: stations licensed in the UK; stations not licensed in the UK or elsewhere; stations licensed for a territory other than the UK; and premium stations, created exclusively for TuneIn.

Judgment

The court considering the legal principles from Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd and identified the following:

• 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 was capable of being “communication”, even if the link was not selected, as it makes the works available.
• An initial posting done with the rights holder’s consent was an act of communication to the public. Subsequent acts of communication had to be analysed with that in mind.
• Initial postings without consent were not relevant acts of communication to the public. Re-posting a work on another site was an infringement, but linking to the first posting was an act of communication that was only an infringement if the poster knew or ought to have known that the original posting was without consent.
• Where the initial communication was without consent and the knowledge of the person posting the link was material, people acting for financial gain would be presumed to have the requisite knowledge but could call evidence to rebut that presumption.

Following these principles the court ruled that firstly stations licensed in the UK users of radio stations already licensed in the UK was not an infringement of section 20 of the CDPA because despite being an act of communication to the public, there was no ‘new’ public so the territorial element was not breached.

However the unlicensed provision to UK-based users of radio stations that are not licensed in the UK, or not licensed at all, is an act of communication to the public which infringes copyright. Therefore, categories stations licensed for a territory other than the UK were also ruled as infringement of copyright.

Stations licensed for a territory other than the UK were an infringement because although there was already an act of communication to the public prior to TuneIn’s intervention, the public to whom TuneIn’s act of communication was addressed could not be said to have been taken into account in relation to the first act of communication.

A further element that was called into the proceedings was TuneIn’s record feature, which acted as a ‘download on demand’ service. Individual users of the app who had made recordings would have committed acts of infringement under section 17 of the CDPA. However, some would have fallen within the defence in section 70 for recordings made in domestic premises.

The judgment has been strongly criticised by TuneIn (as expected), however it will be interesting to see if an appeal is filed. We will of course keep updated on the progress if this matter proceeds to an appeal. Until an appeal is heard it is clear that even where a website does not transmit or store music, it will need to be licensed unless consent has been provided.

If you have any issues with copyright or any other aspects intellectual property you want to discuss, we at Briffa advises on all aspects of intellectual property law and practice and offers free 30-minute consultations to all new clients. If you would like to book a call or a meeting with one of our specialist IP lawyers, please contact info@briffa.com or 020 7096 2779.

Written by Hasnath Ahmed, Solicitor