UK users can TuneIn to overseas radio, but TuneIn needs a UK licence

TuneIn, the operator of an online platform that allows UK users to link to internet radio stations around the world, has been found to infringe copyright by communicating recordings to the public.[1] In a test case on the role of online link aggregators, the judge distinguished between the activity of a service such as TuneIn and the necessary function that a search engine performs.

Facts

TuneIn is a US technology company.  It provides an online service, TuneIn Radio, which provides users with access to links to over 100,000 radio stations around the world.  The free versions of the service carry advertising, and there are paid-for, “premium” versions without adverts.

The claimants, Warner Music UK and Sony Music Entertainment UK, contended that TuneIn required a licence from them, and that TuneIn Radio was communicating their copyright-protected sound recordings to the public without their permission.  TuneIn argued that it did not transmit or store any music, and merely provided users of TuneIn Radio with links to works that had already been made freely available on the internet, without any geographic or other restriction.

Decision

Mr Justice Birss found that TuneIn intervened directly in the provision of the links to streams in a way in which neither conventional search engines nor links on conventional websites did. So he considered that TuneIn’s activity amounted to an act of communication to the public.  This determination was then applied to the claimants’ repertoire available via TuneIn Radio:

• Category 1 – music radio stations licensed in
  the UK;
  
• Category 2 – music radio stations not licensed
  in the UK or elsewhere;
  
• Category 3 – music radio stations licensed for a
  territory other than the UK; and
  
• Category 4 – premium music radio stations.

The judge held that providing links to the Category 1 stations, which were already licensed in the UK, does not infringe UK copyright.  But UK copyright was infringed under Categories 2, 3 and 4.

So TuneIn was liable for: (a) direct infringement where it has bespoke contract to list the stations concerned; (b) authorising infringement for all unlawfully linked stations; and (c) infringement as a joint tortfeasor with the relevant broadcasters.  The operators of the non-UK stations were also liable themselves if they knowingly allowed TuneIn to target their online broadcasts to a UK public.  Finally, TuneIn could not rely on safe-harbour defences under Articles 12, 13 and 14 of E-commerce Directive relating to caching, mere conduit and hosting.

Comment

This case is unlikely to “break the internet”, as TuneIn sought to argue.  The judge was careful to balance the general freedoms that have been intrinsic to the flourishing of the internet with the rights of copyright holders.  It was clear to the judge that TuneIn’s service was more than just a link aggregator: it provided a large-scale service that served as a platform for infringing content to be streamed by millions of UK users.

Further, this case helpfully summarises and clarifies the principles outlined in three important CJEU decisions on linking (Svensson, GS Media and Renckhoff).  The judge’s careful consideration of each category of radio station provides an explanation of the approach to be taken in various scenarios under which a stream may be provided.  His reasoning seems likely to be followed in future cases.

Yet the decision makes it clear that whether an act can be determined to be a “communication to the public” is ultimately fact-specific.  The various elements that make up this definition must be explored in turn and assessed as a whole.

Article written for European Intellectual Property Review.  To read the full article, click here.