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By Martin Douglas Hendry

29/01/20

IP Insight: Is Linking to Radio Streams Online Copyright Infringement?

IP Insight is a series by Virtuoso Legal, the intellectual property specialists. This entry on Warner Music UK Ltd. & Ors v Tunein Inc concerns the legality of linking online to streams of radio stations.

Warner Music UK Ltd & Ors v Tunein Inc [2019] EWHC 2923 (Ch) (01 November 2019)

Background

On 1 November 2019, Justice Birss gave his decision in the case of Warner Music UK Ltd & Ors v Tunein Inc [2019] EWHC 2923 (Ch).  This was a test case concerning copyright and the internet and how the copyright holder can effectively protect its rights on the internet.

Warner Music UK LTD, Sony Music Entertainment UK Ltd and the members of the corporate groups they represent own/hold the exclusive licences to copyright in sound recordings of music (amounting to more than 50% of music on the UK market!)

The defendant in the case, Tunein Inc. (“TuneIn“) is an American company that operates online and enables users to access various radio stations in the UK and abroad (over 100,000 radio stations in total). Tunein made this service available via its website and different apps. When using this service, users were recommended different stations based upon their preferences and location and see/hear ads based upon their location.

Warner Music and Sony Music Entertainment claimed that TuneIn required a licence from them in order to be able provide its service. TuneIn disputed this arguing that it merely provided the users with a directory of radio stations.

The Decision

There were several issues that needed to be considered by Justice Birss in his decision, starting with targeting.

Targeting

As intellectual property rights are territorial and the internet can be globally accessed the issue that arose was whether TuneIn’s service was targeted at UK users.

Referring to the case of Argos v Argos (read our article about Argos v Argos here), Justice Birss held that one should look from the user’s perspective and based upon the case’s facts, a user will see/hear advertisements targeted at the UK and would think that the service is targeted at UK based users.

Therefore, it was held that TuneIn’s service was targeted at the UK.

Communication to the public

Next, Justice Birss had to consider whether, under s.20 of the Copyright, Designs and Patents Act 1988, TuneIn’s service amounted to an act of communication to the public.

Justice Birss held that TuneIn did not work as a simple directory of radio stations/search engine because it allowed the users to search for stations that were playing a specific song.

It was sufficient for TuneIn to provide a link to a work (e.g. a specific song under copyright by the claimants) for this to be capable of amounting to a “communication to the public.”

The parties in the case agreed upon 4 different categories of radio stations that TuneIn users had access to:

  1. Category 1 – music radio stations licenced in the UK;
  2. Category 2 – music radio stations not licensed anywhere;
  3. Category 3 – music radio stations licenced for other territory not the UK;
  4. Category 4 – Premium music radio stations.

 

It was held that there was no infringement in relation to Category 1 music stations as they were licenced in the UK and are available to the public without any access restrictions.

As there was no consent in relation to the Category 2 music stations, it was held that this was copyright infringement.

In relation to Category 3 music radio stations, Justice Birss held that there was already communication to the public prior to TuneIn’s intervention but the communication from TuneIn was to new public and it is a copyright infringement.

Category 4 music radio stations were created exclusively for TuneIn and therefore there was no prior communication to the public act. It was concluded that TuneIn’s service also infringed copyright involving Category 4 music radio stations.

TuneIn’s app that allowed users to download songs also infringed the claimants’ copyright.

Radio stations were also found to infringe the claimants’ copyright when targeting the UK.

Our Insight

There are several implications resulting from the above-mentioned decision. Firstly, having online a radio stream that is licenced in a country but is accessed in a different country does not necessarily mean that there is an act of copyright infringement. However, targeting a territory will likely trigger such infringement.

It is also important to note that radio stations are themselves infringing copyright where without a licence, third parties target their station at the UK.

In the broader sense, this decision points to the potential risk that an online business may face should online advertising (and thus potential targeting) come in to play. As such, for those where there is a potential risk, caution is advised.

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