Enhancing the Scope of 'Communication to the Public' in Copyright Law: Tunein Inc v Warner Music UK Ltd & Anor

Introduction

The case of Tunein Inc v Warner Music UK Ltd & Anor ([2021] EWCA Civ 441) examined the boundaries of copyright infringement concerning online platforms. The Claimants, representing major music copyright holders, alleged that TuneIn, a US-based technology company operating TuneIn Radio, infringed upon their UK copyrights. The central issue revolved around whether TuneIn's provision of access to numerous international radio stations constituted the restricted act of "communication to the public" under UK copyright law.

Summary of the Judgment

Initially tried in May 2019, the case saw Judge Birss deliver a comprehensive judgment in November 2019, largely upholding the Claimants' assertions. TuneIn appealed the decision, challenging the clarity and application of copyright law concerning "communication to the public." The Court of Appeal, after extensive deliberation, dismissed TuneIn's appeal, affirming that TuneIn had indeed infringed the Claimants' copyrights by facilitating access to foreign radio streams targeted at UK users. However, the court nuanced its judgment by distinguishing between different categories of radio stations and the functionalities of TuneIn's applications.

Analysis

Precedents Cited

The judgment extensively referenced numerous Court of Justice of the European Union (CJEU) cases to define "communication to the public." Key cases include:

Svensson v Retriever Sverige AB - Addressed hyperlinking and deemed consent.
GS Media Sanoma - Focused on profit-driven hyperlinking leading to infringement.
Filmspeler - Examined pre-installed multimedia add-ons facilitating access to infringing content.
Pirate Bay - Deemed peer-to-peer platforms as acts of communication to the public.
Renckhoff - Differentiated between initial and subsequent publications concerning a "new public."
VG Bild-Kunst v DDB - Reconciled previous rulings, emphasizing the role of technological measures in restricting access.
Others such as Tom Kabinet, BestWater, and Renckhoff further shaped the legal landscape.

These precedents collectively emphasized that "communication to the public" encompasses deliberate actions that make copyrighted works accessible to an indeterminate and fairly large audience, often facilitated by technological means.

Legal Reasoning

The court's primary legal reasoning hinged on two cumulative criteria for "communication to the public": (1) the act of communication and (2) targeting that communication to the public. TuneIn's platform was scrutinized for its aggregation, categorization, and personalization features, which collectively made foreign radio streams accessible to UK users.

Targeting the UK Public: The judge determined that TuneIn Radio was deliberately targeting the UK audience by presenting and promoting radio stations to UK users, thereby making the foreign streams accessible in the UK context. This targeting transformed the nature of the communication, rendering it an act of infringement.

New Public: The concept of a "new public" was pivotal. The court concluded that although the foreign radio stations were primarily aimed at their local audiences, TuneIn's facilitation made their content accessible to a new, broader public in the UK, which had not been considered in the initial communication by the rights holders.

Authorisation and Joint Tortfeasance: TuneIn was found to have authorised the infringements through inadequate licensing mechanisms and was deemed jointly liable alongside the foreign radio stations and UK users who utilized the Pro app's recording function to infringe copyrights.

Impact

This judgment significantly broadens the interpretation of "communication to the public" within copyright law, particularly in the digital age. It underscores the accountability of online platforms that aggregate and disseminate content, making them liable for infringing acts facilitated through their services. Future platforms offering similar functionalities will need to implement more rigorous licensing and monitoring mechanisms to avoid similar liabilities.

Moreover, the case reinforces the necessity for platforms to understand and respect territorial copyright laws, especially when their services have a global reach. The distinction between mere hyperlinking and active facilitation of content access through technological means is further clarified, providing clearer guidelines for legal compliance.

Complex Concepts Simplified

Communication to the Public

This refers to any act that makes a copyrighted work accessible to an audience without the rights holder's authorization. It includes not just direct broadcasts but also more indirect forms like providing links or facilitating access through platforms.

Targeting

Targeting involves directing the communication toward a specific geographical or demographic audience. In this case, TuneIn's actions were aimed at UK users, thereby subjecting their platform to UK copyright laws.

New Public

A "new public" means an audience that was not considered in the original communication by the copyright holder. By making foreign radio streams accessible to UK users, TuneIn created a new audience that was not part of the initial authorization.

Joint Tortfeasance

Joint tortfeasance occurs when multiple parties are liable for a wrongful act. Here, both TuneIn and the foreign radio stations were held liable for facilitating the unauthorized communication of copyrighted works.

Conclusion

Tunein Inc v Warner Music UK Ltd & Anor serves as a landmark case in delineating the responsibilities of online platforms in the realm of copyright law. By affirming that platforms like TuneIn can be held liable for infringing acts facilitated through their services, the judgment imposes a higher standard of accountability. It mandates that such platforms must ensure proper licensing and be vigilant in preventing unauthorized access to copyrighted materials. This case not only clarifies the scope of "communication to the public" but also sets a precedent for future litigation involving digital content dissemination, ultimately shaping the legal obligations of technology companies operating in the information age.