In TuneIn Inc v Warner Music UK Limited and Sony Music Entertainment UK Limited  EWCA Civ 441, the Court of Appeal (UK) has unanimously rejected arguments that the UK should depart from EU jurisprudence on what constitutes infringement by “communication to the public” under copyright law following the departure of the UK from the EU under “Brexit”.
The claimants, Warner Music and Sony Music, alleged that Tunein (a radio aggregator) had infringed copyright by allowing access to around 70,000 radio stations from around the world by its website and various apps. The case was determined in reference to the restricted act of “communicating to the public” as opposed to unauthorized copying of a copyrighted work, as Tunein had not broadcast any of the claimants’ music recordings directly, and instead provided hyperlinked access to third-party streams within its website/apps. The claimants succeeded in demonstrating infringement at first instance for all music stations on its platforms, including UK radio stations that were separately licensed with the music licensing company PPL. Tunein appealed to the CA. It submitted, amongst other things, that TuneIn simply provided hyperlinks to freely available content and so was therefore no different to a search engine. It also criticised Birss J’s legal analysis and submitted that the CA should deviate from case law on hyperlinking and “communications to the public” in the Court of Justice of the European Union (CJEU).
Arnold LJ, delivering the leading judgment, held that the UK should continue to follow the CJEU’s approach, favouring its experience in confronting the issue, including across a series of 25 judgments (including four Grand Chamber judgments) over 14 years. The argument that TuneIn was merely providing a hyperlink similar to a search engine was squarely rejected by the CA, as that did not reflect the reality of the situation, even on a technical level. In contrast to a search engine, TuneIn had provided indexing and access to the radio station’s audio streams, as opposed to websites generally, as well as a means for browsing, organising and listening to radio stations in one place (whereas a search engine would simply direct a user to the third party’s website). Tunein’s appeal was largely dismissed, although it successfully appealed a liability finding for providing a recording function for PPL-licensed UK radio stations in its app (a separate issue). Paragraph70-72 of Arnold LJ’s decision includes an updated 15-point summary of the CJEU’s approach and 17 case examples considered by the CJEU, which will serve as a useful starting point for future cases.
The decision will likely be instructive in New Zealand’s approach to claims of infringement by “communication to the public” under s33 of the Copyright Act 1994. A link to the case can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2021/441.html