TuneIn Radio has substantially lost its appeal against a 2019 High Court decision, which found that its radio streaming service infringed copyrights owned by Warner Music and Sony, when its UK listeners streamed foreign radio stations (i.e., stations not licensed in the UK, but which may have been licensed in their own territory) via its online platform. At trial, the parties had characterised the potential outcomes of the case by reference to two extremes: either "fatally undermining copyright" or "breaking the internet". In coming down against TuneIn, the Court of Appeal's decision confirms the approach to a significant issue of copyright law in the internet age, namely the scope of the right of communication to the public. In particular, the Court of Appeal adopted and applied the approach taken by the European Court of Justice (CJEU) in relation to the communication to the public right, as developed in a series of 25 judgments and reasoned orders over a 14 year period, culminating in its most recent decision in VG Bild in March 2021 (with further cases pending).
As the case came before the Court of Appeal after the end of the Brexit transition period, it presented an opportunity for the Court to consider whether to revisit, and potentially diverge from, this CJEU line of case law, using its new powers to depart from retained EU case law. However, TuneIn's attempt to persuade the Court of Appeal to do so, or at least to depart from the CJEU's GS Media decision on hyperlinking, received short shrift. Indeed, the Master of the Rolls, Sir Geoffrey Vos, characterised this as a "paradigm case in which it would be inappropriate" to depart from retained EU case law. The Court noted that there had been no change in the UK legislative framework, nor in the international framework. (Of course, Parliament could decide to amend the relevant provisions in due course, if it sees fit, though this will be subject to the UK's international obligations). Further, whilst its case law was not perfect, the CJEU had "unrivalled experience" in confronting, across a broad range of factual scenarios, the conflict between the broad right of communication to the public, and the global and interconnected nature of the internet. The Court of Appeal concluded that if were now to go "back to the drawing board" on communication to the public, this would create considerable legal uncertainty and, on the facts of this this case, would not even assist TuneIn by providing a clear defence to the copyright infringement claim.
As well as highlighting the approach that the Court of Appeal will take when asked to depart from retained EU case law, the Court also demonstrated its preparedness to take into account and apply post-Brexit CJEU cases - a UK court may "have regard to" such judgments - in its assessment of the VG Bild case, which the Court said was "highly persuasive".
Background
TuneIn Radio provides links to over 100,000 radio stations broadcast by third parties around the globe, via its website or on an app. In the UK alone, it provides users with access to tens of thousands of music radio stations. However, TuneIn does not collect or transmit any third party audio content, but rather it connects the user to third party radio streams. This type of indexing and providing of hyperlinks was described by the trial judge as "a kind of framing" in that, from the user's perspective, it seems as though the content is provided by TuneIn, rather than coming directly from the third party website.
TuneIn's unregistered users can access a free service in which advertisements (placed by TuneIn via an automated advertising platform) play before the radio station starts playing, while registered users can pay for a premium, advert free service. TuneIn Radio provides many services in addition to aggregating international radio streams: users are able to browse by categories of music, artist, song name etc. TuneIn also collates information about the music radio stations and recommends stations to users based on their listening history, location etc.
At trial, the High Court (Birss J, as he then was) found that TuneIn did not infringe copyright in relation to the streams of music radio stations which were licensed in the UK by the collecting society Phonographic Performance Limited (PPL). However, TuneIn did infringe copyright in relation to streams of foreign radio stations that were not licensed in the UK. Further, the trial judge found that TuneIn's service via its Pro app (which allowed users to record what they were listening to, until it was disabled for UK users in April 2017) infringed the Claimants' copyright in relation to all radio stations, including those licensed in the UK by PPL, when the recording function was enabled.
The High Court also concluded that the foreign internet radio stations themselves infringed the Claimants' copyright, when their station was targeted at the UK by TuneIn, even though it was only through the acts of TuneIn that those stations became targeted at UK users. Further, individual users infringed when they used the Pro app to make recordings of sound recordings. In relation to those acts, TuneIn was liable for authorisation of copyright infringement, and as a joint infringer.
Court of Appeal Decision
The Court of Appeal largely dismissed TuneIn's appeal, save in relation to the use of the recording function on the Pro app when used in relation to UK radio stations.
Does TuneIn target the UK?
TuneIn accepted that its platform targeted the UK. However, the Court of Appeal rejected its argument that individual communications to the public of the foreign internet radio stations were not also targeted at the UK.
Does TuneIn communication copyright works to the public?
In giving the leading judgment, Mr Justice Arnold conducted an in-depth analysis of the CJEU case law on the communication to the public right, setting out a summary of the principles developed in those cases, and how they have been applied in different factual scenarios. In relation to hyperlinking by framing, he noted the CJEU's most recent decision in VG Bild, which he described as "highly persuasive" whilst recognising its reasoning was not entirely easy to follow. In particular, Arnold LJ held that the CJEU's decision did not mean that the only way in which a rights holder could limit its consent to linking or framing was by means of effective technological measures.
TuneIn's position was that its service was no different to a conventional search engine because it simply provides users with hyperlinks to websites containing radio streams, and does not transmit or store any music itself. However, the Court of Appeal rejected this argument. The nature of TuneIn's service meant it was not a conventional search engine - TuneIn's users benefit from a host of additional features including a search functionality and personalisation of content. Even at a technical level, it was inaccurate to say that it merely provided links.
In relation to whether TuneIn communicated copyright works to the public, the key issue before the Court was whether the streams were communicated to a new public. This depended upon the scope of the authorisation by the rights holders of the original communication on the relevant radio station. In relation to foreign radio stations which benefited from a statutory scheme in their local territory, TuneIn's core argument was that the rights holders' authorisation of the original communication was not territorially restricted, with the operation of the statutory scheme operating as a form of deemed consent, including to those that accessed the streams via hyperlinks. However, the Court of Appeal agreed with the trial judge that TuneIn's service was a different kind of communication and one which was targeted at a different public in a different territory. Even if the statutory scheme operated as a deemed consent, there was no reason to conclude that that authorisation extended to the UK public targeted by TuneIn's communication. Further, the judge had properly struck a fair balance between the fundamental rights engaged, i.e., IP rights and freedom of expression.
Given this conclusion, it followed that TuneIn also infringed in relation to those foreign radio stations which were not licensed in their local territory. However, the Court of Appeal also considered the impact of the CJEU's GS Media decision and the operation of the rebuttable presumption of knowledge set out in that case where links are provided by websites for the purposes of profit. Whilst TuneIn relied upon the fact that it required all radio stations to give a warranty that they had the necessary licences in place, in fact many had not given that warranty or had made some lesser statement, and the checks made by TuneIn were generally inadequate to rebut the GS Media presumption.
However, the Court agreed with TuneIn in respect of the use of the recording function on its Pro app when used in relation to UK licensed radio stations. The High Court had held that TuneIn infringed in relation to all categories of radio stations (including radio stations licensed in the UK), when users enabled a feature of TuneIn's Pro app which allowed them to record radio streams, because this was a different technical means to the original communication. Departing from that decision, the Court of Appeal held that there was no new technical means involved, and further there was no new public involved. It made no difference on either assessment if the Pro app's record function was enabled. However, the users who recorded the radio streams would still be liable for infringement of copyright in this scenario and so, given the finding of accessory liability, this meant TuneIn remained liable for the Pro app infringement.
Do the foreign radio stations infringe copyright?
The consequence of the Court's findings in relation to communication to the public and targeting was that the individual foreign radio stations were also infringing the Claimants' copyright, by making acts of communication to the public in the UK. Whilst the Court recognised this might "at first blush seem a surprising conclusion" e.g., where TuneIn had indexed the foreign stations without the knowledge or consent of those stations, it followed the finding that foreign streams became targeted at the UK as a result of TuneIn's intervention. There was nothing to prevent two parties being primarily liable for a communication to the public – both TuneIn and the foreign radio stations. To avoid such liability arising, the foreign stations could require removal of their service from TuneIn Radio or implement geo-blocking for UK users.
Comment
The Court of Appeal was clearly reluctant to reformulate the law on communication to the public, not least because there has been no change in the domestic or international legislative framework justifying a departure from the existing principles laid out by the CJEU in a line of case law developed over many years. It remains to be seen, however, whether TuneIn will seek permission to appeal to the Supreme Court, which may present a further opportunity for it to call for such a re-assessment.
It is also worth noting that Lady Justice Rose and Sir Geoffrey Vos' observations were laced with caution directed at Lord Justice Arnold's efforts to summarise the key principles of law in this area, which he had extracted from his review of the CJEU case law. Both expressed the need for caution in including such summaries in domestic judgments, particularly in circumstances where some of the principles discussed in such CJEU decisions are not strictly on point. The law in this area will no doubt further evolve at the CJEU level – whilst any relevant decision of the CJEU post-Brexit will not be binding on the English courts, they can have regard to such decisions as appropriate and should not be discouraged from doing so on the basis that the Court of Appeal has in this decision, through a "tour d'horizon" of existing CJEU case law, stated the law as it currently stands.