Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 28 November 2011 - ITV Broadcasting Limited e.a. v TV Catch Up Limited

(Case C-607/11)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicants: ITV Broadcasting Limited e.a.

Defendant: TV Catch Up Limited

Question referred

On the interpretation of Directive 2001/29/EC of the European Parliament and of the

Council of 22 May 2001 on the harmonisation of certain aspects of copyright and

related rights in the information society ("the InfoSoc Directivew):

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:

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;

A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area 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:

The third party's sewer 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 data packet sent by the server onto the internet is addressed to only one individual subscriber?

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 subscriber's 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?

the intervening organisation is:

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

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

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¹ - OJ L 167, p. 10