Establishing 'New Public' Communication in Copyright Infringement: SKY UK v Alex Cherrie [2021] CSOH 36

Introduction

The case of SKY UK LIMITED AGAINST ALEX CHERRIE ([2021] CSOH 36) presented before the Scottish Court of Session delves into the complexities of copyright infringement in the digital age. Central to the dispute was Sky UK's motion for an interim interdict against Alex Cherrie, who was accused of unlawfully distributing Sky's copyrighted television programs via online platforms Reddit and YouTube. The case underscores the challenges of enforcing intellectual property rights in online communities and examines the legal boundaries of "communication to the public" under the Copyright, Designs and Patents Act 1988.

Summary of the Judgment

The Court granted the pursuer, Sky UK Limited, an interim interdict to prevent Alex Cherrie from further infringing Sky’s copyrights. Cherrie had operated several subreddits and a YouTube channel through which he shared unauthorized links and copies of Sky's broadcasted programs. Despite prior takedown requests to Reddit and YouTube, Cherrie persisted in disseminating Sky’s content, which was primarily behind a paywall. The Court found that Cherrie's actions constituted both "copying" and "communicating to the public" Sky’s broadcast content without authorization, thereby breaching sections 17 and 20 of the Copyright, Designs and Patents Act 1988. Additionally, the Court addressed whether Cherrie's sharing of content from Sky Arts Channel, which had recently become free-to-air, still constituted infringement by targeting a "new public."

Analysis

Precedents Cited

The Judgment heavily referenced two seminal cases from the Court of Justice of the European Union (CJEU): Svensson v Retriever Sverige AB [2014] C-466/12 and GS Media BV v Sanoma Media Netherlands BV [2016] C-160/15. In Svensson, the CJEU clarified that providing hyperlinks to freely available content constitutes "communication to the public" under EU law. GS Media BV further cemented this interpretation by emphasizing the significance of the "new public" criterion—whether the content is made available to an audience not accounted for in the original authorization by the copyright holder. These precedents were pivotal in shaping the Court's approach to determining infringement in the digital context, particularly regarding the dissemination of content via hyperlinks and online platforms.

Legal Reasoning

The Court's legal reasoning centered on the application of the Copyright, Designs and Patents Act 1988, specifically sections 16, 17, and 20. Section 17 prohibits unauthorized copying of copyrighted material, while section 20 prohibits the unauthorized communication of such material to the public. The Court evaluated whether Cherrie's actions—posting hyperlinks and uploading content to YouTube—constituted unauthorized communication. By providing links to content behind a paywall and uploading full episodes, Cherrie effectively bypassed Sky's access controls, making the content accessible to a broader audience without proper authorization. This was deemed as communication to a "new public," distinct from the group initially authorized by Sky when setting up access controls. The Court also considered the financial motivations behind Cherrie's actions, noting his solicitation of funds via Patreon and PayPal, which further underscored the infringement's intentionality.

Impact

This Judgment has significant implications for the enforcement of copyright laws in the digital realm. By affirming that providing hyperlinks to protected content constitutes "communication to the public," the Court reinforces the de facto rights of copyright holders to control the dissemination of their works online. Moreover, the elucidation of the "new public" concept serves as a critical benchmark for future cases involving unauthorized digital distribution. Content creators and platforms must now exercise greater diligence in monitoring and preventing unauthorized sharing, while individuals disseminating content via online communities may face heightened legal scrutiny. Additionally, this case may influence how intermediary platforms like Reddit and YouTube implement and enforce their content moderation policies to comply with copyright laws.

Complex Concepts Simplified

Communication to the Public: This legal term refers to making a work available to an audience. In this case, sharing links or uploading content online allowed anyone to access it, qualifying as communication to the public.

'New Public': This concept distinguishes between the original audience authorized to view the content and a broader audience who gains access through unauthorized means. If content is made available to a group not initially intended by the copyright holder, it constitutes communication to a new public.

Interim Interdict: A temporary court order intended to prevent a party from engaging in certain actions until the final resolution of the case.

Prima Facie: Latin for "at first glance," it refers to evidence that is sufficient to establish a fact or raise a presumption unless disproved.

Conclusion

The Judgment in SKY UK LIMITED AGAINST ALEX CHERRIE underscores the evolving landscape of copyright enforcement in the digital age. By applying and expanding upon existing EU precedents, the Court effectively delineated the boundaries of lawful content dissemination online. The affirmation that providing hyperlinks and uploading content to platforms like Reddit and YouTube can constitute unauthorized communication to a new public sets a clear standard for future cases. This decision not only reinforces the protective measures available to copyright holders but also signals to online content distributors the legal ramifications of infringing activities. As digital platforms continue to proliferate, such judicial interpretations will be pivotal in shaping the balance between content accessibility and intellectual property rights.