I had the good fortune of attending a symposium on International Copyright Law recently and despite the stoic and intelligent thinking of a number of the delegates, I was left with an overall feeling of unease and disquiet.  To understand this unease I need to explain as briefly as possible the background to international copyright law.

It was recognised early on by international governments that copyright material crosses borders, but it was important for authors and owners of that material to be able to rely upon protection in those countries.  This was the founding stone of the Berne convention which guaranteed that signatories to the convention would give foreign authors the same protection that nationals of their own states enjoyed in respect of copyright material.  This was back in the 1950’s and since then more and more countries have signed the Treaty. Now the World Intellectual Property Organisation has responsibility to settle these international treaty obligations.

Today, copyright material doesn’t only move across borders in shipments, and counterfeit material doesn’t only turn up on market stalls in East London, with the advent of the internet delivery, exposure and infringement is worldwide in an instant.

The reports back from delegates who attended the WIPO conference in Geneva this year indicate a changing attitude towards the owners of copyright material.  The lobbies for free unrestricted use of copyright material have gained the status of oppressed minorities and appeared before the legislators as those needing help and deserving of protection from what is perceived as multinational copyright despots imposing sledgehammer tactics to crack nuts.  It is also seen by the legislators that copyright protection is a fetter on economic growth and activity, and therefore at odds with the very principal of the market.  However, I cannot understand the logic in this, because copyright protection has enabled the creative industries to achieve such economic importance in the UK.

My unease and disquiet was deepened when reports came back from similar attitude changes within the European commission in relation to their forthcoming directives on copyright material, and even further when our own Hargreaves Report was published in the summer and is now subject to consultation by the UK coalition government who intend to adopt its recommendations.

In principal, the concept behind increasing permitted acts with copyright material for the benefit of society which have no commercial impact on the copyright owners is both laudable and understandable.  The devil, of course, is in the detail.

As lawyers, we spend our lives dealing with the detritus which falls through the net of legislative drafting.  Unfortunately copyright material isn’t like land and we can’t easily grant public rights of way.  That said, it is not an impossible task but very careful knowledge based understanding needs to be deployed in order not to erode commercial value in copyright material.

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In order to protect their rights, a tenant must apply to the court by the termination date given in the notice otherwise he will lose his rights to a new lease.  In this case, the tenant should really have known better as they were an established firm of estate agents.  However, they took no action.

The landlords did not want them to leave but were able to insist that the tenant’s new lease was granted outside the Landlord and Tenant Act 1954.  That means that the tenants will not be entitled to a new lease at the end of the new term unless the landlord is willing to grant one.  Statutory rights of renewal are very valuable to business tenants and if you are a business tenant you should seek urgent advice in respect of any notices received from your landlord.

We act for either landlords or tenants from time to time.  Wearing our tenant hat, we have from time to time advised clients to serve a notice under Section 26 of the Landlord and Tenant Act 1954 before the landlord has a chance to do so where it was anticipated that the landlord might serve a notice of less than 12 months and the tenant wanted to have a longer period to decide what to do.  A notice served by the tenant puts the landlord in the position of having to respond and to indicate whether he is willing to grant a new lease.  Where the tenant is protected under the Landlord and Tenant Act 1954, the landlord can only refuse to grant a new lease on certain statutory grounds, the most common of which is the ground where the landlord intends to carry out substantial works and cannot reasonably do so without having possession of the property.  In those circumstances, the tenant will normally be entitled to statutory compensation based upon the rateable value of the business premises.  The amount depends on the length of time over which the business has occupied that property.

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The defendant (‘TVC’) operates a website at www.tvcatchup.com, which streams UK television to computers, smartphones and games consoles. Individuals have to sign up first as members. The terms of membership includes confirming you held a valid TV licence and are based in the UK. Once signed up, members can then select a stream of the programme being broadcast on the selected channel at that time. This is live but subject to a slight delay because, importantly, TVC first shows members one of its own advertisements before the live stream is started. At no stage during the process is the whole, or any part, of the video stream stored on any permanent storage medium belonging to TVC or the end-user. However, at each step of the process there is a small amount of data from the video stream stored on the buffers of TVC’s servers.

The various broadcasters brought proceedings for copyright infringement arguing that copyright in the broadcasts and films was infringed by the communication of them to the public, and that copyright in the broadcasts and films was infringed by the making (or authorisation of the making) of transient copies of the broadcasts and films on TVC servers and on the screens of users.

The judge referred the questions to the ECJ for a preliminary ruling. The ECJ’s ruling is likely to have a significant impact on commercial streaming of third party broadcasts, as it will help determine whether these types of live streaming services can continue to re-transmit without obtaining the consent of the broadcasters. The judge’s provisional view is favourable to the broadcasters’ position in his finding that the streaming does infringe
broadcast copyright, but it remains to be seen whether the ECJ’s guidance will be consistent with that conclusion.

In reading the judgment, it is clear that the judge considers it to be important that TVC’s activities were part of a commercial operation (i.e. “for profit”). TVC is taking the broadcasters’ feed and deliberately building a business off the back of this without the rights holders’ consent. The judge’s sympathies very much lie with the rights owners. If it follows the same path, the ECJ’s ruling is sure to get a good reception from the rights holders.

The decision comes after a long battle in which the industry first persuaded the UK government of the benefits of copyright term extension before it was escalated to the European courts.

Dominic McGonigal of PPL added, “It has been a good couple of months – with the copyright term Directive, changes to the Licensing Act, improvements to the notification appeals process and a broadly sensible response to the Hargreaves Report. The Government does seem to want us to flourish. My hope now is that they develop a better understanding of the economics of creative businesses.”

The challenge facing the music industry now is to see that the Directive is incorporated into UK law as soon as possible within the two year suggested incorporation period. At present no definitive implementation date has been given.