The High Court has held that the TuneIn radio aggregator service infringed the right to communicate musical copyright works to the public in Warner Music UK Ltd & Ors v Tunein Inc [2019] EWHC 2923 (Ch).
The case was 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. The judge pointed out that 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 argued that a finding for the defendant would fatally undermine copyright. In contrast, the defendants argued that a finding for the claimants would break the internet.
The claimants, and the groups they represent, own or hold the exclusive licences to copyright in sound recordings of music. A traditional radio station (that is, a radio station broadcasting by radio waves using FM, AM etc) wishing 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.
The defendant is a US technology company. It operates an online platform, providing a service which enables users to access radio stations around the world. The service is available via a website and mobile apps.
The judge considered four categories of music radio stations—those licensed in the UK (eg BBC Radio), unlicensed services anywhere in the world, licensed ones in a territory other than the UK, and the premium radio service.
The claimants’ case was that TuneIn requires a licence from the claimants. This was strongly disputed by TuneIn, on the basis that it did not transmit or store any music, and merely provided users of TuneIn Radio with hyperlinks to works which have already been made freely available on the internet without any geographic or other restriction.
In all but the first category of music radio station, the court held there was copyright infringement by way of an act of communication to the public, which the copyright owner had not consented to.
The court held further:
- Users of the TuneIn app who used the app’s recording function had infringed copyright by unlawfully reproducing musical recordings. In addition, not all of that activity would have been covered by the section 70 defence relating to time-shifting.
- Radio stations not licensed in the UK infringed copyright when TuneIn targeted their station at the UK.
- The defendant was also liable for infringement by authorisation and as a joint tortfeasor.
- The defendant could not rely on the safe harbour defences in the E-Commerce (EC Directive) Regulations 2002 SI 2002/2013.
