Tune On, Tune In, Cop Out


Our team: Tim Wright, Joshua Bennett


Turn On, Tune In, Cop Out?

Warner Music and Sony Music v TuneIn

On 1 November 2019, TuneIn was found to have infringed the rights of Warner Music and Sony Music (together the Claimants). The case itself focussed on the interpretation of the English copyright law concept of ‘communication to the public’ in circumstances where online radio streams licensed locally are made available globally by way of an internet link.

The Facts

TuneIn operates a global online radio service that enables users (via an app or website) to access more than 100,000 internet music radio stations around the world. In turn, Warner Music and Sony Music account for more than half the market for digital sales of recorded music in the UK, and around 43 percent globally.

Importantly, TuneIn does not collect, transmit or store any third party audio content; instead it connects users to the radio stations’ online streams. Warner and Sony alleged that by providing such links to its users, TuneIn was acting as more than a mere internet intermediary. And in doing so, they argued, TuneIn was infringing the Claimants’ rights in sound recordings by allowing UK based users to access online radio streams without a licence to do so.

In its defence, TuneIn argued that it was simply a sophisticated search engine for radio streams and therefore did not need a licence from the Claimants.

Judgement

Targeting

TuneIn were found to be targeting UK internet users; this was evident for a number reasons, including:

  • TuneIn’s engagement of UK specific advertising sellers;
  • TuneIn’s assistance in the targeting of advertising campaigns to particular demographics within the UK; and
  • TuneIn’s bespoke advertising with currency denominations in pound sterling.

The High Court highlighted that there will be internet radio stations based overseas which, when they are put on the internet by their own operator on the operator’s own website, are not targeted at the UK and therefore the operator need not pay a UK copyright licence. This remains true if a UK based person finds the internet radio station and listens to it from the UK; merely having an accessible site or platform online does not mean your acts are infringing acts in a territory.

However, as a result of TuneIn’s acts, the same internet radio station, when it is presented to a UK based listener by TuneIn, is targeted to the UK. Accordingly, restricted acts under the Copyright, Designs and Patents Act 1988 (the 1988 Act) were likely taking place in the UK.

Communication

Upon analysing TuneIn’s acts, Justice Birss found that, for the purpose of Section 20 of the 1988 Act, the provision of TuneIn’s service amounted to an act of “communication” of the relevant copyrighted works “to the public” and therefore was an infringement. A communication to the public under this section includes either the broadcasting of the copyrighted work or making it available by electronic transmission to the public in such a way that they can access it at a time and place of their choosing.

However Justice Birss then had to consider whether the original streaming was done with the copyright owner’s consent:

  • If no, then any subsequent communication was potentially an infringing communication to the public and the court would need to consider whether TuneIn had the requisite knowledge that the original communication was without the right holder’s consent; or
  • If yes, any subsequent act of communication had to either be a communication to a new public or using a new technical means for the act to be infringing.

Judgement and application

Justice Birss subsequently divided the radio stations available on TuneIn into four sample categories:

  1. radio stations with music licenses in the UK (Category 1);
  2. radio stations without music licenses in the UK or in foreign territories (Category 2);
  3. radio stations with music licenses in foreign territories, but not in the UK (Category 3); and
  4. premium radio stations created exclusively for TuneIn, and available to premium TuneIn subscribers (Category 4).

Having established that UK copyright law applied, due to the targeted approach adopted by TuneIn, the judge ruled that:

  • TuneIn’s unlicensed provision of links to Category 1 radio stations does not infringe copyright; and
  • TuneIn’s unlicensed provision of links to Category 2, Category 3 and Category 4 radio stations does infringe copyright.

The Court’s reasoning can be explained as follows:

  • For Category 1, despite being an act of communication to the public, these radio stations were already licensed in the UK, meaning the sound recordings were freely available to the general public, including TuneIn users with the consent of consent of the rights holder. In other words, TuneIn were not communicating the sound recordings to “new public”.
  • For Category 2, as the radio stations did not have any licences, either in the UK or overseas, the provision of unlicensed streams was a clear of infringement by TuneIn. Notably, despite contractual warranties from the radio stations that they held the appropriate licences, TuneIn was presumed to know that these stations were unlicensed.
  • For Category 3, the radio stations had licence in their relevant foreign territory; however TuneIn’s act of communication were targeted towards “a new public” in the UK and therefore were an infringement.
  • For Category 4, as the radio stations had been created exclusively for TuneIn but were unlicensed, there was a clear infringement.

Conclusion

An appeal has been lodged by TuneIn, but there are a number of key points to note:

  1. Where a radio stream is licensed on a territorial basis and is available on the internet, it does not automatically mean that an infringing act occurs if a user from an unlicensed country accesses the stream;
  2. However, the act of targeting users an unlicensed territory is likely to trigger an act of communication and subsequently, an infringement;
  3. Targeting can be carried out by the radio station itself, but also by any third party accessing the stream and targeting it at another public; and
  4. Section 20 of the 1988 Act is a tort of strict liability, and therefore it also applies to a radio station indexed and targeted at another country by a third party, without the station’s knowledge (for example, by way of web crawling).

In other words, an online radio station with a valid licence in its home territory, would be found to be infringing copyright in all territories where its signal can be accessed from the very moment it is aggregated and indexed by a third party targeting other countries, regardless of whether a radio station’s had knowledge of the aggregation.

Online platforms must also consider whether they require any licences and whether any territorial restrictions apply, when connecting their users to third party content such as music photos or art.

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