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Consolidate
d Draft 14.10.11

1

SCHEDULE




(A)

THE PRELIMINARY REFERENCE AND PROCEDURAL REQUESTS


1.

The High Court of Justice of England and Wales, Chancery Division, (Mr
Justice Floyd) requests, pursuant to Article 267 of the Treaty on the
Functioning
of the European Union (“TFEU”),

a
preliminary ruling by the
Court of Justice of the European Union on the interpretation of Directive
2001/29/EC
of the European Parliament and the Council of 22 May 2001
on the

harmonisation of certain aspects of copyright and related rights in
the informat
ion society.


(B)

THE PARTIES


2.

The Claimants in the action before the High Court are:
-

(a)

ITV
BROADCASTING LIMITED,
a company registered in
England, whose registered office is
The London Television
Centre, Upper ground, London, SE1 9LT.

(b)

ITV 2 LIMITED, a c
ompany registered in England, whose
registered office is The London Television Centre, Upper ground,
London, SE1 9LT.

(c)

ITV DIGITAL CHANNELS LIMITED, a company registered in
England, whose registered office is The London Television
Centre, Upper ground, Lon
don, SE1 9LT.

(d)

CHANNEL 4 TELEVISION CORPORATION of 124 Horseferry
Road, London, SW1P 2TX.

(e)

4 VENTURES LIMITED, a company registered in England, whose
registered office is 124 Horseferry Road, London, SW1P 2TX.



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(f)

CHANNEL 5 BROADCASTING LIMITED, a company regist
ered in
England, whose registered office is The Northern & Shell Building,
Number 10 Lower Thames Street, London, EC3R 6EN.

(g)

ITV STUDIOS LIMITED, a company registered in England, whose
registered office is The London Television Centre, Upper ground,
London,

SE1 9LT.

3.

The solicitors for the Claimants are Olswang

LLP of 90 High Holborn,
London, WC1V 6XX,
tel
: 020 7067 3000, fax: 020 7067 3999

and
reference
:
PAS/JAV/25100
-
5. Counsel are Mr James Mellor QC and Ms
Jessie Bowhill.

4.

The Defendant in
the action is:
-

TVCat
c
hup Limited
, a company registered in England, whose registered
office is c/o Hamlins Solicitors, 273/287 Regent Street, London, W1B
2AD.

5.

The solicitors for the Defendant are Hamlins LLP of
Roxburghe House,
273/287 Regent Street, London, W1B 2AD, tel
: 020 7355 6000, fax: 020
7518 9100 and reference: 121/WMF/T08021/1.
Counsel are Mr Martin
Howe QC and Mr James Whyte.

(C)

THE PROCEEDINGS BEFORE THE NATIONAL COURT


6.

The action before the High Court arises out of an internet
-
based live
streaming service
operated by the Defendant, TVCatchup Limited
(hereafter “TVC”). This service permits its users to receive via the
internet “live” (i.e. substantially in real time) streams of free
-
to
-
air
television
broadcasts (including free
-
to
-
air television broadcasts
t
ransmitted by the Claimants
, as well as broadcasts of other commercial
broadcasting organisations and the state
-
funded British Broadcasting
Corporation
).

7.

The Claimants

are commercial

t
elevision broadcasters who own copyright
under national law (1) in the

television broadcasts themselves

and (2) in
films consisting of programmes and other items which are included in


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their broadcasts.

They are funded by advertising carried in their
broadcasts.

8.

The Claimants have sued TVC in the High Court for infringement o
f
copyright in their broadcasts and in their films. Having found the facts
and having ruled on
a number of issues of national law, the High Court
has concluded that it is unable to determine certain

points of EU law
which are considered below.

Accordingl
y the High Court has stayed its
proceedings and now refers the Questions set out in Section (J) to the
Court of Justice for its opinion.

(D)

SUMMARY OF THE RELEVANT FACTS


9.

Users of the TVC service must create an account with log
-
in details. TVC
endeavour

to ensure that their viewers can only receive access to content
which they are already legally entitled to watch by means of their
television
licence. The terms to which users must agree include the
possession of a valid TV licence and a restriction of us
e to the country of
residence. The

website has the facility to authenticate the user's location,
and will refuse access where membership conditions are not satisfied.

10.

The TVC service is funded by advertising, by showing an audiovisual
advertisement before

the live stream is viewed. The advertisements
actually

contained in the original broadcasts are retained unaltered and
sent to the user as part of the stream. There

is also "In
-
skin advertising",

which appears on the
user’s computer or other device in th
e frame of the
viewer which displays the TVC stream. The Court considers that TVC
directly competes with the

Claimants by selling and showing

this
advertising.

11.

The TVC service is administered on TVC’s behalf by a web hosting
company, although all the serve
rs involved are owned by or leased to
TVC, and are located in England. The servers are arranged in a
sequence of four groups of servers, each group fulfilling a different
function. The server groups are called (i) acquisition, (ii) encoding, (iii)
origin

and (iv) edge.



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12.

The input signals used by TVC are the normal terrestrial and satellite
broadcast signals transmitted by the Claimants. The signals are captured
via a single domestic TV aerial and a single satellite dish located in the
Maidenhead area. O
nly digitally broadcast TV channels are used. Both
digitally broadcast satellite signals and digitally broadcast terrestrial
signals are received. They are received in a compressed format known
as MPEG
-
2. The signals comprise multiple video streams. Eac
h stream
represents a television channel.

13.

The signals are passed by the aerial to the acquisition servers. These
servers contain conventional tuner cards which, in combination with
software installed on the servers, extract individual video streams from
th
e received signal. The output from the acquisition servers is therefore a
video stream in MPEG
-
2 format, unaltered from the broadcast.

14.

The output from the acquisition servers is passed to the encoding
servers. The encoding servers contain software which

converts the
incoming MPEG
-
2 stream into an MPEG
-
4 stream, that is to say a
different compression standard.

15.

The MPEG
-
4 stream from the encoding servers is made available to the
origin servers. Commercial software called Wowza Media Server 2 is
used to p
repare streams of video for sending over the internet in a variety
of formats. Up to this point, all channels offered by TVC are processed.
Channels are, however, only processed beyond this point if at least one
TVC subscriber has requested that channel.

If there is no request for a
given channel, the signal is discarded.

16.

Edge servers take the stream from the origin servers. The edge servers
also use the Wowza software. These servers connect with a user's
computer using the internet. They can also ma
ke connection with a
user's mobile phone, via the internet and then via the cabling inherent in
the network operator's infrastructure, making the final link by wireless
transmission from the mobile base station.

17.

When an edge server receives a request for
a channel from a user, then,
unless it is already streaming that channel to a different user, the edge


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server connects to the origin server which streams that channel. The
Wowza software on the edge server creates a separate stream for each
user who reque
sts a channel through it. Thus an individual packet of
data leaving the edge server is addressed to an individual user, not to a
class of users.

18.

The streams provided by the edge servers can be in a variety of different
formats. The formats used are:

(a)

Ad
obe Flash streams. These are deployed when the user is at a
desktop or laptop computer. These computers will have an Adobe
Flash player to enable the signal to be displayed on the screen;

(b)

HTTP streams. These are for Apple mobile devices (iPhones and
iPad
s); These devices will use the Apple Quicktime software to
display the signal on the mobile device;

(c)

RTSP streams. These are used for Android and Blackberry
mobile phones. These devices have a media player able to
display such a stream.

19.

A user who clicks

on a channel logo on the TVC website causes the
media player to connect to the TVC web server. The TVC web server
checks that the user is logged in, is in the UK and not using a virtual
private network. If authentication is successful, the web server wil
l return,
if one is available, the URL of an advertisement to be displayed before
the channel is received. For the playing of the stream, the user is
provided with the URL of one of the TVC edge servers.

20.

At no stage during the process is the whole or any
part of the video
stream stored on any disk or other permanent storage medium. All
processing takes place in volatile memory. However, in each of the steps
described a small amount of data from the video stream is held in the
memory of the servers involv
ed. In the case of streaming for Apple
devices the servers will hold the video stream in "play list" form". At any
one time the servers must hold three "play list" items of 10 seconds each,
making a total of 30 seconds of stored video. In fact rather mo
re will be


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stored because of the need to prepare and store the next item. So 30
-
40
seconds of video are stored for Apple streaming.

21.

In the case of streaming to a Personal Computer, TVC's buffers have the
capacity to hold up to 8 seconds of video streaming

in memory. The
precise figure will depend on the load. The figure of 1 to 5 seconds
would normally be used, but the range could be exceeded in periods of
very high load. In the end the Court is of opinion that the precise figure
does not make any diffe
rence to the legal issues.


(E)

THE CLAIMANTS’ CASE OF INFRINGEMENT AND TVC’s
DEFENCES


22.

The Claimants rely on two categories of copyright work: broadcasts and
films.
Under UK national law, the word “copyright” is used for both the
exclusive right conferr
ed on works covered by the Berne Convention and
also for other kinds of subject matter including broadcasts.
Copyright
subsists in the broadcasts and films relied on and is owned by one or
more of the Claimants. They allege that the copyright in each cate
gory of

work has been infringed by (a) communication of the works to the public
and (b) by making, or authorising the making of, transient copies of the
works in TVC's servers and on the screens of users. The Claimants do
not allege that TVC’s acts amount

to infringement by "broadcasting" as
opposed to "communication to the public".

23.

TVC contend that what they do is not a 'communication to the public' of
the films or of the broadcasts.


As regards films, TVC contend that the
acts which they carry out do no
t amount to a 'communication to the
public' by TVC within the meaning of Article 3.1 of Directive 2001/29/EC
(the "InfoSoc Directive"). The Directive was implemented in the UK by the
Copyright and Related Rights Regulations 2003, which amended the
Copyrigh
t Designs and Patents Act 1988 ("CDPA 1988") to give effect to
Article 3.1 by conferring the right to restrict "communication to the public"
on the owners of copyright in films and other Berne Convention works
(see sectio
n 20(1), quoted
below). In addition
, those Regulations
amended the CDPA 1988 so as to confer the right to restrict


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"communication to the public" on the owners of copyright in broadcasts.


TVC contend that the meaning of "communication to the public" of
broadcasts is a matter governed by nat
ional law since it lies outside the
scope of Article 3.1 of the Directive, and deny that what they do amounts
to such a communication.

24.

The main defences relied on by TVC in relation to the allegation of
making or authorising the making of transient copies
of broadcasts and/or
cinematographic films are, firstly, that the copies are not substantial parts
of the works relied on and secondly that section 28A of the CDPA 1988
(temporary copies having no independent significance) applies. Section
28A transposes
into national law the defence against infringement laid
down in Article 5.1 of the InfoSoc Directive.

25.

In addition to these main defences and in relation to some only of the
channels which TVC
stream to users
, TVC contend that they have the
defence afforded

by section 73(2)(b) and 73(3) of the CDPA 1988.
These defences are a matter of national law and are not the subject of
this preliminary reference.


(F)

INTERNATIONAL TREATIES AND NATIONAL LEGISLATION


26.

The Berne Convention for the protection of Literary
and Artistic Works
does not deal with broadcasts as a subject of copyright. However it deals
with the restricted acts in the nature of broadcasting to be afforded to
Berne Convention works in Article 11
bis
. Article 8 of the WIPO Copyright
Treaty (1996) r
equires the right of communication to the public by wire or
wireless means to include “the making available to the public of their
works in such a way that members of the public may access these works
from a place and at a time individually chosen by them.
” Both these
provisions form part of the background against which Article 3.1 of the
InfoSoc Directive was adopted.

27.

Under section 6 of the CDPA 1988 (as amended by the 2003
Regulations), a “broadcast” is defined as including both wired and
wireless transm
issions. Section 20 of the CDPA 1988 provides:



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20

Infringement by communication to the public


(1)

The communication to the public of the work is an act
restricted by the copyright in
-



(a)

a literary, dramatic, musical or artistic work,



(b)

a sou
nd recording or film, or



(c)

a broadcast.


(2)

References in this Part to communication to the public are
to communication to the public by electronic transmission,
and in relation to a work include
-



(a)
the broadcasting of the work;



(b)

the m
aking available to the public of the work by electronic
transmission in such a way that members of the public
may access it from a place and at a time individually
chosen by them.


28.

The definition of communication to the public in section 20(2)(a) and (b)
m
akes it clear, by the use of the word “include”
,

that it extends to the two
particular cases identified, but also that it is no
t limited to those cases
alone.

29.

As regards reproduction, section 17 of the CDPA 1988 provides:

17 Infringement of copyright by co
pying


(1)

The copying of the work is an act restricted by the
copyright in every description of copyright work; and
references in this Part to copying and copies shall be
construed as follows.


(2)

Copying in relation to a literary, dramatic, musical or

artistic work means reproducing the work in any material
form.


This includes storing the work in any medium by electronic
means.


...


(6)

Copying in relation to any description of work includes the
making of copies which are transient or are incidental

to
some other use of the work.


30.

In relation to parts of works, section 16(3) of the CDPA 1988 provides:



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(3)

References in this Part to the doing of an act restricted by
the copyright in a work are to the doing of it



(a)

in relation to the work as
a who
le or any substantial part
of
it, and



(b)

either directly or indirectly;




and it is immaterial whether any intervening acts themselves
infringe copyright.


(G)

COMMUNICATION TO THE PUBLIC


31.

TVC maintain that they are not communicating the
Claimants'

b
roadcasts
or films to the public by electronic transmission within the meaning of
section 20 of the CDPA 1988. For this purpose there is no need to
distinguish between broadcasts and films, and no question of "substantial
part" arises.

32.

This Court conside
rs that it is obliged to construe “communication to the
public” (at least in relation to films) in section 20 of the national legislation
consistently with the meaning of that concept in the InfoSoc Directive.
Recital (23) indicates that the communication

to the public right should be
understood in a broad sense. That Recital reflects the use of the words
"any communication to the public" in Article 11bis of the Berne
Convention and Article 8 of the WIPO Copyright Treaty. It is clear that
the term is cho
sen to be technologically neutral.

33.

In Case C
-
306/05:
Sociedad General de Autores y Editores de Espana
(SGAE) v Rafael Hoteles SL

[
2006
]
E.C.R. I
-
11519,

the Court of Justice
had to determine what was meant by "communication to the public" in a
case concerne
d with the distribution by hotel proprietors of broadcast
signals received by them to rooms within their hotels in which hotel
guests can view Berne copyright works included in the broadcasts. In
that case the Audencia Provincial de Barcelona had asked th
e Court of
Justice, in essence, whether the distribution of a signal through television
sets in customers' hotel rooms constituted an act of communication to the
public within the meaning of Article 3.1 of the InfoSoc Directive and


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whether the installation

of television sets in hotel rooms constituted, in
itself, an act of that nature.

34.

The Court observed, in reliance on recital (23), that communication to the
public must be interpreted broadly. Nevertheless, in view of recital (27),
the mere installation o
f television sets did not constitute the act of
communication to the public. The core of the Court's reasoning is at [38]
to [44].

35.

The Claimants focus on [40], and submit that whenever there is an
intervention by a broadcasting organisation other than the

original one,
there is a communication to the public within the exclusive right of the
copyright owner and which it is entitled to control. The re
-
transmitted
signal will be to members of the public who are not the direct recipients of
the signal. Whils
t the condition in the final sentence of [42] (inability to
receive the signal without intervention) is not always met, the recipients
of a re
-
transmitted signal will enjoy the broadcast work through a different
route and only on account of the interventi
on of the re
-
broadcaster. They
submit that this is consistent with Article 11bis(1)(ii) in its reference to
"communication … made by an organisation other than the original one",
and with the Guide to the Berne Convention relied on by the Court.

36.

TVC point
out that the question referred was based on the provision of
TV sets by the hotel, and did not relate to a situation such as the present
in which the intervening organisation does not own or control the
equipment on which the member of the public chooses t
o view the
broadcast. They also focus on [42] which they contend appears to
acknowledge that the mere provision of technical means to ensure or
improve reception in the catchment area would not amount to a
communication to the public. They point out that
the Rome Convention
Intergovernmental Committee at its 12th Session (Geneva, 5 to 7 July
1989) adopted a report by committees of governmental experts setting
out a number of principles. Under "Cable distribution" it adopted:



"
Principle AW26.

It does not
amount to distribution by
cable of the broadcast of the work concerned where the
broadcast, received by an aerial larger than generally
used for individual reception, is transmitted by cable to


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individual receiving sets within a limited area consisting of
one and the same building or a group of neighboring
buildings, provided that the cable transmission originates
in that area and is made without gainful intent."


37.

TVC submit that the point made here shows that not every physical act of
distribution of a br
oadcast signal is an act of communication to the public.
Merely providing technical means which assist people more easily or
readily to receive what they could in principle receive by other means
does not amount to a communication to the public.

38.

TVC refe
r in addition to a paragraph from the opinion of Advocate
General La Pergola in
Entidad de Gestion de Derechos de los
Productores Audivisuales (Egeda) v Hosteleria Asturiana SA (Hoasa)

Case C
-
293/98) [2000] ECR I
-
629 at [22] which is cited in the opinion o
f
Advocate General Sharpston in
Rafael Hoteles

at
[52]:



"it is all too clear
-

given that such retransmission is not
just a technical means to ensure or improve reception of
the original broadcast in the catchment area, as in the
case, for example, of th
e installation and use of
transceivers


that [the hotel proprietor] gave the hotel
guests access to the protected work. If [it] had not made
secondary use of broadcasts, the clients
-

although
physically within the satellite catchment area
-

would not
hav
e been able to enjoy the broadcast work in any other
way; they therefore constitute, in this sense, a ‘new’ public
that differs from the primary broadcast public."


39.

The Court has also been referred to the decision of the CJEU in Joined
Cases C
-
431/09 and C
-
432/09
Airfield NV and Canaal Digital NV v
Belgische Vereniging van Auteurs, Compositien en Uitgevers CVBA
(Sabam)
and

Airfield NV v Agicoa Belgium BVBA
published on 13
th

October 2011 (“
Airfield
”), a case concerned with the concept of
communication to the

public in Directive 93/83 EC. The CJEU in that
case ultimately concludes that the acts of an intervening satellite package
provider required authorisation. The route to the conclusion that the
satellite provider “expanded the circle of persons having ac
cess” and
accordingly “enables a new public to have access” appears to be a multi
-
factorial assessment, taking into account:



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(a)

The fact that the person intervening encrypts the communication
or provides a key, and provides corresponding decoding devices,
th
us enabling the link to be established between the broadcasting
organisation and the subscribers (see [78]);

(b)

The intervention is one without which the subscribers would not
be able to receive the programmes, although physically within the
area (see [79]);

(c)

The intervention is an autonomous service performed for profit
(see [80]);

(d)

The satellite provider provides a package of channels, not just
those of one organisation (see [81]).

40.

It follows from the authorities and other materials to which this Court has
ref
erred that
it considers there

is a distinction between an act which qualifies as
a communication to the public, and the provision of:



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13

(i)

"just a technical means to ensure or improve reception of the
original broadcast in the catchment area":
Rafael Hoteles

at
[42] and La Pergola AG in
Egeda

; or

(ii)

"an aerial larger than generally used for individual reception"
for relaying the signal to "individual receiving sets within a
limited area consisting of one and the same building or a group
of neighbouring buildi
ngs, provided that the cable transmission
originates in that area and is made without gainful intent" :
Rome principle AW 26.

41.

As the authors of Ricketson & Ginsburg "International Copyright and
Neighbouring Rights" point out at paragraph 12.38, the charact
er of an
act of secondary communication can vary widely, from the provision of a
simple community antenna to a highly sophisticated receiving station
which distributes broadcast programmes over a wide geographical area.
They say:



“In the first of these
cases, however, it may be doubted
whether there is a true secondary communication to the
public in that the community antenna simply replaces a
multitude of individual antennae on the same building or
buildings and this is therefore no more than a receptio
n
of the primary broadcast. It may also be argued that
there is no 'organization' which makes the
communication in such a case, apart from the body
representing the owners or tenants of the building in
question. It can therefore be concluded that such for
ms
of distribution fall outside the scope of Article 11bis(1)(ii),
and this is the view that has been taken on a national
and international level."


42.

The Court considers that what is less clear from the decision
s

of the
Court of
Justice in
Rafael Hoteles

and
Airfield

is whether there is a
communication to the public when an intervening organisation, acting
for its own profit, intervenes in full knowledge of the consequences of its
acts and in order to attract an audience to its own transmission and
adverti
sements, to communicate the original broadcast signal to
members of the public who would in fact be able to access the original
broadcast signal using their own television sets or laptops in their own
homes. Reading paragraph [40] of the judgment in
Rafae
l Hoteles

in
isolation would give an affirmative answer. But other passages
in that


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14

case and in
Airfield
suggest
that it is material to ask whether there is a
"new public" and whether the
viewers

would have been able to access
the broadcasts without the i
ntervention. This Court considers that the
principles which it is possible to extract from
Rafael Hoteles

and
Airfield

do not go far enough to enable it to answer that question conclusively in
the Claimants' favour. Accordingly this Court is making this

reference to
the Court of Justice on this point. However, in case it is of assistance
this Court will express its provisional view.

43.

Given the broad meaning which the Directive requires to be given to
"communication to the public", it seems that any limita
tions on the
natural meaning of the expression need to be kept within tight bounds.
In this Court’s judgement, these limitations are all concerned with
excusing from liability acts whose purpose is purely supportive of the
original broadcaster's intentio
n to have its signal received in its
catchment area. Where, by contrast, the acts concerned are aimed in
competition with the original broadcaster, and intended to attract the
audience of the original broadcaster away from direct reception of its
signals,

they are within the notion of communication to the public. In
this way, a distinction is maintained between acts of third parties which
are independent exploitations of the copyright and related rights, and
acts which are merely supportive of the exploit
ation which is inherent in
the original transmission of the work.

44.

Thus in
Rafael Hoteles

the hotel proprietor was merely relaying the
signal, but he was doing it to a new audience not within the
contemplation of the copyright owner when he licensed the ori
ginal
broadcast. This Court does not take from the case any principle that it is
only in those circumstances that an intervening organization makes a
communication to the public. There was clearly an independent
exploitation of the works.

In
Airfield
there

was also an express finding
that the satellite package provider made the works accessible to a
public which is additional to the public targeted by the broadcasting
organisation concerned.

45.

In
Rafael Hoteles

the Court felt that it did not have to decide wh
ether a
financial motive on the part of the intervening organisation was a
necessary ingredient. Sharpston AG plainly regarded the financial


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15

motive as a factor, but not necessarily a decisive one, in [51] of her
Opinion. From the judgment of the Court at
[44], it seems that it
regarded benefit to the hotel proprietor as relevant as well.

Airfield
at
[80] is to the same effect

46.

In this Court’s provisional view, the acts of TVC in intercepting the
Claimants'

broadcasts (and works comprised therein) and making

them
available via the internet amount to acts of communication to the public.

47.

Firstly, TVC's intervention is plainly by an organisation other than the
original broadcaster. It is, prima facie, a "communication to the public".
It is necessary to see
whether it can be brought within the limitations on
that term.

48.

Secondly, there is no analogy with the case of the community antenna
discussed in Rome principle AW 26. Even in that case there was a
proviso that the antenna was not provided with gainful int
ent. So the
analogy breaks down even before one considers the other factors.

49.

Thirdly, TVC do not in
the Court’s
judg
e
ment merely provide technical
means to ensure or improve reception in the catchment area of the
broadcast. The service which TVC provide
is an alternative service to
that of the original broadcaster, including its own advertising content,
and which is in competition with the service provided by the original
broadcaster. It is operated for profit. It is intended to attract its own
public aud
ience. Its activities are therefore, in this Court’s view an
independent exploitation, of the works and other subject matter. They
are not merely supportive of the original exploitation of the work.

50.

Fourthly, this Court does not think that the fact tha
t subscribers would
be entitled to receive the broadcasts direct on their domestic televisions
or computer screens means that the recipients of the TVC service are
not a "new public". The Directive and the Act require only that the
communication be to
"the public", subject to the narrow limitations which
have been discussed. If there is a communication to a new class of the
public, then that is a clear indication that one is outside the exception.
But to go further and hold that every communication to

the originally


Consolidate
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16

contemplated class is exempted, goes much further than warranted by
authority.

51.

Fifthly, the aggregate of the individual communications which TVC make
at any given time is properly to be regarded as a communication to the
public, as opposed
to a plurality of individual and private
communications. In
Rafael Hoteles

it was appropriate to consider the
communications to the members of the public in their separate hotel
rooms, and to consider as well the fact that the occupants of such
rooms are
regularly replaced. In this Court’s judg
e
ment it is appropriate
to look cumulatively at the communications in the present case, rather
than regarding them as an aggregate of individual ones. This Court
also does not think it matters that the communicatio
ns are initiated by
the users. It is true that user
-
initiated communications are the subject of
the “making available” right: but in this Court’s
judgement
such
communications are a sub
-
set of the notion of communication to the
public, not an extension of

it.

52.

In connection with the correct approach to aggregating a number of
private communications, TVC relied on a decision of the Court of Appeal
of Singapore applying national legislation also based on Article 8 of
WIPO Copyright Treaty:
RecordTV Pte Ltd

v MediaCorp TV Singapore
Pte Ltd

[2010] SGCA 43. That case involved a service by which
members of the public could request RecordTV to record broadcast
programmes on their behalf, on Record TV

s servers. The Court held it
was the end users rather than R
ecordTV who were making the copies
of the broadcasts for the purposes of the reproduction right.
Accordingly the end users were able to take account of a time
-
shifting
defence. So far as "communication to the public" is concerned, the
Court held that the
re had not been any communications to "the public"
and RecordTV was not the party who made the communications in any
event. At §26, the Court stated:



"26 In any case, in view of the
modus operandi

of
RecordTV's iDVR service, we find that any
communicati
ons made by RecordTV to Registered Users
who had requested the recording of a particular
MediaCorp show were made privately and individually.
We see no reason why the aggregate of the private and
individual communications made to each of the aforesaid


Consolidate
d Draft 14.10.11

17

Regi
stered Users should transform the nature of such
communications into "public" communications. Although
any member of the public could register with RecordTV
to become a Registered User, he had no immediate
access to all (or any) of the MediaCorp shows alre
ady
recorded by RecordTV. This was because RecordTV's
iDVR service was not a video
-
on
-
demand service
whereby RecordTV shared a library of recorded works
with Registered Users. Rather, a Registered User was
only allowed to access and view time
-
shifted recor
dings
of the specific MediaCorp shows which he had requested
to be recorded. Thus, each Registered User had to make
a request for a particular MediaCorp show to be recorded
for him, and only he could access the show recorded at
his request."


53.

To the extent

that this conclusion is inconsistent with one of the grounds
for decision in Record TV, this Court respectfully differs from it.
Although the Singapore Court was applying a provision of Singapore
law derived from the same international convention, it is
difficult to
reconcile the conclusion reached there with the reasoning in
Rafael
Hoteles

and the obvious desire in the Directive to provide for a
technologically neutral definition of communication to the public. It
would be an unfortunate result if a po
int
-
to
-
multipoint communication
were to be actionable but a number of point to point transmissions were
not.

54.

Finally this Court should deal with a further point relied on by TVC. That
was that the absence of control by TVC over the equipment on which
th
e signal is received by the viewer was a ground on which
Rafael
Hoteles

could be distinguished. This Court was not persuaded by that
submission. Although it is fair to say that the case was one in which the
intervening organisation did provide the recepti
on equipment, it is clear
from the judgment that the infringing act was the distribution of the
signal and not the provision of the apparatus.


(J)

THE QUESTION

REFERRED


55.

In the light of the foregoing matters, the High Court

submits the
following Questio
n

to the Court of Justice for a preliminary ruling:
-



Consolidate
d Draft 14.10.11

18

On the interpretation of Directive 2001/29/EC of the European Parliament and
of
the
Council of 22 May 2001 on the harmonisation of certain aspects of
copyright and related rights in the information socie
ty ("the InfoSoc Directive")
:


Question 1
.
Does the right to authorise or prohibit a "communication to the
public of their works by wire or wireless means" in Article 3.1 of the Directive
extend to a case where:

(i)

Authors authorise the inclusion of their

works in a terrestrial
free
-
to
-
air television broadcast which is intended for reception
either throughout the territory of a Member State or within a
geographical area within a Member State;

(ii)

A third party

(i.e. an organisation other than the original

broadcaster), provides a service whereby individual subscribers
within the intended area of reception of the broadcast who could
lawfully receive the broadcast on a television receiver
in their
own homes
may log on to the third party's server and receive
the
content of the broadcast by means of an internet stream?


Does it make any difference to the answer to the above question if:

a.

The third party's server allows only a "one
-
to
-
one" connection for each
subscriber whereby each individual subscriber establis
hes his or her
own internet connection to the server and every data packet sent by
the server onto the internet is addressed to only one individual
subscriber?


b.

T
he third party's service is funded by advertising which is presented
"pre
-
roll" (i.e. during
t
he
period of time after a subscriber logs on but
before he or she begins to receive the broadcast content) or "in
-
skin"
(i.e. within the frame of the viewing software which displays the
received programme on the subscriber's viewing device but outside
the
programme picture) but the original advertisements contained
within the broadcast are presented to the subscriber at the point
where they

are
inserted in the programme by the broadcaster?


c.

the intervening organisation is:

i.

providing an alternative service t
o that of the original
broadcaster, thereby acting in direct competition with the
original broadcaster for viewers; or



Consolidate
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19

ii.

acting in direct competition with the original broadcaster
for advertising revenues?