C-607/11

1) ITV Broadcasting Limited
2) ITV 2 Limited
3) ITV Digital Channels Limited
4) Channel 4 Television Corporation
5) 4 Ventures Limited
6) Channel 5 Broadcasting Limited
7) ITV Studios Limited

v TV Catch up Limited

This case raises the following question which has been sent to the Court of Justice for a preliminary ruling:

Question 1. Does the right to authorise or prohibit a “communication to the public of their works by wire or wireless means” in Article 3.1 of the Directive extend to a case where:

(i) Authors authorise the inclusion of their works in a terrestrial free-to-air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;

(ii) A third party (i.e. an organisation other that the original broadcaster), provides a service whereby individual subscribers within the intended areas of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party’s server and receive the content of the broadcast by means of an internet stream?

Does it make any difference to the answer to the above question if:

a. The third party’s server allows only a “one-to-one” connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every day packet sent by the server onto the internet is addressed to only one individual subscriber?

b. The third party’s service is funded by advertising which is presented “pre-roll” (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or “in-skin” (i.e. within the frame of the viewing software which displays the received programme on the subscribers viewing device but outside the programme picture)  but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?

c. the intervening organisation is:

i. providing an alternative service to that of the original broadcaster, thereby acting in direct competition with the original broadcaster for viewers; or

ii. acting in direct competition with the original broadcaster for advertising revenues?