High Court 'tunes in' to debate on linking and communication to the public

In November 2019, the High Court handed down judgment in the latest in a series of cases concerning communication to the public over the internet. In what has been labelled as a “test case” on copyright infringement in sound recordings, the Court ruled that a digital service enabling users to link to internet radio stations infringed the Claimants’ copyright where: (i) the stations were not licensed in the UK or elsewhere; (ii) the stations were only licensed outside the UK; or (iii) they were premium stations. The decision serves as a reminder for businesses operating in the digital sphere that care needs to be taken to secure licences when linking to third party content that is not freely accessible in the UK.

The Case: Warner Music & Sony Music v TuneIn[i] 

TuneIn is an internet radio service with links to over 100,000 radio stations around the world, accessible via website and apps. Although TuneIn does not transmit third party audio content, it collects and stores metadata in order to connect users to third party radio streams, as well as recommending internet radio stations and allowing users to search, browse and playback audio content.  

The Claimants, Warner Music and Sony Music, own exclusive licences to copyright in sound recordings and alleged infringement against TuneIn by linking to this content without a licence.  

Decision

Given the vast number of radio stations available via TuneIn’s service, the Court assessed four ‘sample’ categories:

1. Radio stations licensed in the UK (Category 1);
2. Radio stations which are not licensed in the UK or elsewhere (Category 2);
3. Radio stations licensed for a territory outside the UK (Category 3); and
4. Premium radio stations created for TuneIn, available exclusively for subscribers (Category 4).

Ruling primarily in favour of the Claimants, the Court held that TuneIn was targeting UK internet users and Categories 2, 3 and 4 of the service amounted to an infringing communication to the public. The providers of these stations also infringed when their streams were played to UK users via TuneIn’s service, and TuneIn had authorised such infringements as a joint tortfeasor.

However, given that the Category 1 stations were already licensed in the UK and freely available to users, connecting users to this content via TuneIn was not an infringing communication. TuneIn did not communicate these works to a ‘new public’, as the UK public had already been accounted for by rightholders when the stations were licensed in the UK.

Implications

This decision follows in the wake of high-profile CJEU decisions on hyperlinking in recent years (including GS Media and Svensson) and provides a useful insight on the UK’s approach to copyright infringement in the context of linking.

Businesses which connect users to third party content will need to give careful consideration to the scope of licences that may be required and undertaking appropriate clearance checks, particularly where (as was the case with TuneIn) linking forms a central part of its commercial operations and territorial issues are involved. However, the Court’s acknowledgment that linking to stations already licensed in the UK will not be an infringing communication will be well received as preserving a balance between copyright protection and freedom of access to the internet.