Warner Music UK Ltd v TuneIn Inc.

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Justice Birss
Judgment Date01 November 2019
Neutral Citation[2019] EWHC 2923 (Ch)
Docket NumberCase No: IL-2017-000025

[2019] EWHC 2923 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

INTELLECTUAL PROPERTY LIST (ChD)

Royal Courts of Justice

The Rolls Building

7 Rolls Buildings

London, EC4A 1NL

Before:

Mr Justice Birss

Case No: IL-2017-000025

Between:
(1) Warner Music UK Ltd
(2) Sony Music Entertainment UK Ltd (for themselves and as representative Claimants on behalf of the members of their respective corporate groups)
Claimants
and
TuneIn Inc.
Defendant

Edmund Cullen QC and Amanda Hadkiss (instructed by Wiggin) for the Claimants

Robert Howe QC and Jaani Riordan (instructed by Bird & Bird) for the Defendant

Hearing dates: 26th and 27th September 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Birss Mr Justice Birss

Topic

Paragraphs

Introduction

1

Targeting

12

Communication to the public – the law

35

The sample stations

112

Communication to the public — assessment

120

The TuneIn service

120

Category 3

132

Category 2

143

Category 4

161

Category 1

164

The recording function in the TuneIn Radio Pro app

172

Liability of users making recordings with the TuneIn Radio Pro app

179

Liability of the providers of Categories 2, 3 and 4 stations

192

Authorisation or joint tortfeasance

196

Safe harbours

205

Other issues

211

Conclusion

212

Introduction

1

The relationship between copyright and the internet is not always an easy one. This case is another example of that tension. It is a test case about infringement of copyright in sound recordings under section 20 of the Copyright, Designs and Patents Act 1988. Section 20 provides for the communication right in UK law. A balance has to be struck between the interests of the copyright owner in protecting its exclusive rights, and the interests of the public in freedom of access to the internet. The claimants say that a finding for the defendant will fatally undermine copyright. The defendant says that a finding for the claimants will break the internet.

2

Section 20 of the 1988 Act implements Article 3 of the Information Society Directive 2001/29/EC. The CJEU has set out general principles of interpretation of that provision. They are addressed below. In the end though it is for the national courts to determine where the balance lies in a given case. It is a fact-sensitive exercise.

3

The claimants, and the groups they represent, own or hold the exclusive licences to copyright in sound recordings of music. The two groups together account for more than half the market for digital sales of recorded music in the UK and about 43% globally. A traditional radio station (i.e. a radio station broadcasting by radio waves using FM, AM etc.) which wishes to play recorded music to its listeners needs a licence from the claimants, assuming the music is within the claimants' repertoire. One source of these licences is the collecting society Phonographic Performance Limited (PPL).

4

Today radio stations are available on the internet. That includes “simulcasts” and “webcasts”. The internet signal is received as a stream by the listener. A simulcaster is a traditional radio station which also simultaneously transmits its signal over the internet. A webcaster simply transmits its signal over the internet and does not also broadcast by radio waves. These can be referred to together as internet radio stations. They also require a licence if they are going to play the relevant music recordings.

5

The claimant (TuneIn) is a US technology company. It operates an on-line platform, providing a service which enables users to access radio stations around the world. The service is called TuneIn Radio. TuneIn Radio is available via a website and also via apps which may be downloaded from the relevant app stores, for use on mobile devices. The services are available for free to unregistered users. There is also a free service for registered users which allows users to save “favourites”, and there is a paid for “Premium” service without advertisements. In terms of apps, there is a free app called TuneIn Radio and a paid-for app called TuneIn Radio Pro which allows users to stream content without advertisements and has other functions. TuneIn's apps are also pre-installed on a number of devices such as Bose, Sonos and Sony PlayStation pursuant to partnership agreements entered into with TuneIn. As a result, TuneIn Radio is now available on over 200 platform connected devices, including: smart phones; tablets; televisions; car audio systems; smart speakers; and wearable technologies.

6

TuneIn Radio has links to over 100,000 radio stations, broadcast by third parties from many different geographic locations around the world. TuneIn Radio provides its users in the UK and elsewhere with access to tens of thousands of music radio stations. TuneIn Radio is monetised through advertising and subscriptions.

7

To facilitate searching, browsing and playback of audio content, TuneIn collects and stores metadata about content being transmitted by internet radio stations (e.g. the artist, track and album names) from data provided by the stations. This metadata is collected via an application programme interface, known as AIR API, or from ‘in-stream’ metadata bundled with the audio content (which is only provided if a TuneIn user is connected to the stream). This metadata is used to assist with search optimisation, to display stations to browsing users and to display during playback. TuneIn does not, however, collect, transmit or store any third party audio content; it connects the users to – and therefore relies upon – third party radio stations' streams.

8

When a user accesses the TuneIn website or app, one way or another they are presented with various internet radio stations. TuneIn may recommend internet radio stations, users can browse based on different categories or users can enter search terms. TuneIn curates categories of stations both manually and using algorithms. It uses the individual's listening history to direct them to recently played stations and to provide tailored recommendations. The search function is by keywords. These can be matched to station name, to tags (from the operator or TuneIn) and/or to stream metadata (when available). One search function is by artist. Another search function, which TuneIn stopped but may restart and needs to be considered, is by song.

9

One way or another the user will be presented with one or a group of icons representing various internet radio stations which TuneIn Radio is presenting to that user. If available the user will also be presented with information about what artist and song is playing on the station at the time. A search by artist will produce a collection of stations which are playing music from that artist at the time.

10

The user selects the icon and, after a “pre-roll” advertisement (unless the service is ad-free), the internet radio station starts playing on their device. The page on the user's screen remains a TuneIn page. The user has not been taken to the internet radio station's website. Again assuming the user is not paying for an ad-free service, while the stream plays the user will see advertisements on the screen. These will have been put there by TuneIn's service. They are not the advertisements which the internet radio station's own website would have provided if the user had gone to or been taken to the radio station's site.

11

The claimants' case is that TuneIn requires a licence from the claimants. This is strongly disputed by TuneIn, on the basis that it does not transmit or store any music, and merely provides users of TuneIn Radio with hyperlinks to works which have already been made freely available on the internet without any geographic or other restriction.

Targeting

12

The internet is international. Users accessing the world wide web from the UK can gain access to websites all over the world. This is routine. However unlike the internet, intellectual property rights are territorial. In what circumstances therefore does an act undertaken on the internet engage the laws, in particular the intellectual property laws, of a given state? The clear answer to that question is that for the rights in an EU member state to be engaged (at least as far as trade marks and copyright are concerned) the act must be targeted at the public in that member state (see e.g. Pammer v Reederei Karl Schulter Case C-585/03, L'Oreal v eBay Case C-324/09, Football DataCo v Sportradar Case C-173/11, applied in the UK to the communication right in EMI v BskyB [2013] EWHC 379 (Ch) (Arnold J)).

13

So an organisation providing services through the internet (by a webpage or an app) does not need to be concerned about UK copyright at all if it does not target the UK (ignoring irrelevant points about the location of servers). The fact that members of the public in the UK can and do access those services does not matter if they are not targeted at the UK. If access from the UK happens on an appreciable scale then it might be evidence from which targeting could be inferred (along with other evidence) but that is not the point. The fact that all internet users around the world have free access to the contents of a website does not amount to targeting all potential visitors to the site and does not amount to targeting the public in a particular member state.

14

Focussing on an internet radio, this principle means that an internet radio station operator playing sound recordings within the claimants' repertoire will, if it targets the UK, need a licence under the claimants' UK copyrights. And that is so irrespective of the physical location of the business premises of the internet radio...

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