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EU High Court: TV Station Signal Streamer Must Get Permission

Broadcasters suing Aereo TV for streaming TV station signals
without permission got some moral support from across the pond this week.

The Court of Justice of the European Union, in essence the
Supreme Court of European Union law, has ruled that the streaming of a TV broadcast
signal over the Internet is a transmission to the public that requires the
authorization of the broadcaster. Or, put another way, streaming without
permission is a violation of copyright law.

Britain's ITV Broadcasting, which includes Channel 4, had
sued Internet streaming service TVCatchup Ltd. for copyright infringement for
streaming antenna-captured over-the-air signals as part of its ad-supported
online video service.

TVC had argued that it was only using a remote antenna to
give its users access to free over-the-air signals they were already entitled
to, an argument that Aereo has made as well.

The High Court of Justice in England and Wales punted on the
copyright breach call, saying it was unclear whether the streaming of a signal
to which a subscriber is already entitled is a communication to the public
subject to copyright protection, and referred the case to the EU Court.

This week the court ruled that it was.

"Given that the making of works available through the
retransmission of a terrestrial television broadcast over the Internet uses a
specific technical means different from that of the original communication,
that retransmission must be considered to be a 'communication' [to the
public]," the EU court ruled. "Consequently, such a retransmission
cannot be exempt from authorization by the authors of the retransmitted works
when these are communicated to the public."

The court did not accept TVC's argument that streaming was
merely a technical means to ensure or improve terrestrial reception -- case law
has found that not to be a "communication." Instead, the court said,
streaming is not improving the quality of a pre-existing transmission, but
instead a separate transmission of protected works.

The court ruled that a 'communication to the public'
triggering copyright protection applies:

  1. "Where the retransmission is made by an organization
    other than the original broadcaster;
  2. "By means of an Internet stream made available to the subscribers of that
    other organization who may receive that retransmission by logging on to its
    server, and;
  3. "Even though those subscribers are within the area of reception of that
    terrestrial television broadcast and may lawfully receive the broadcast on a
    television receiver."

"NAB is gratified that Europe's highest court has found that those retransmitting broadcast signals over the Internet must obtain the consent of the owners of the broadcasts and the materials in those broadcasts,"said National Association of Broadcasters spokesman Dennis Wharton: "The Court's ruling noted the 'high level of protection of authors' provided under European law 'allowing them to obtain an appropriate reward for the use of their works.' Those seeking to retransmit U.S. broadcast signals over the Internet should be required to do no less."