Fine tuning the internet: Hyperlinking and copyright infringement Warner Music & Sony Music Entertainment v TuneIn [2019] EWHC 2923 (Ch) Ruling on a test case in the High Court on 1st The claimants alleged that TuneIn had infringed November 2019, Mr Justice Birss held that their exclusive right as license-holders to TuneIn, a service which gives users access to over communicate copyright works to the public under 100,000 radio streams around the world via a section 20 of the Copyright, Designs and Patents website and an app, infringes license holders’ Act 1988 (CDPA). TuneIn claimed that because it rights by providing hyperlinks to overseas radio does not store or transmit any music, and merely stations, making copyrighted works available to a hyperlinks to radio streams freely available new section of the public by targeting UK users. elsewhere, this could not be the case. TuneIn argued that the practice of hyperlinking was so This is the latest UK case to deal with the difficult fundamental to freedom of access to the internet copyright implications of hyperlinking and offers that a finding for Warner and Sony would “break some practical insight into where the UK courts the internet”. consider the boundary lies between infringement and free expression. The High Court’s decision The background The Judge divided the stations which TuneIn provides access to into four categories: Warner and Sony own or hold exclusive licenses to copyright in sound recordings which account • Category 1 –stations licensed in the UK and for more than half the market for digital sales of freely available to UK users online; recorded music in the UK and over 40% • Category 2 – stations which are not licensed in worldwide. TuneIn is a US company which the UK or elsewhere; operates an online platform called “TuneIn • Category 3 – stations licensed in a territory Radio”, available to users via a website or an app. other than the UK and targeted at overseas TuneIn Radio connects users to works that are users; and already available on the internet, without • Category 4 – premium stations created geographic or other restrictions, via hyperlinks. exclusively for TuneIn. The user is not taken to the radio station's website, but rather streams content via TuneIn’s Having considered each category in turn, the interface and sees advertisements provided by Court decided that in all but the first category, TuneIn while streaming. It also operated (but has TuneIn was infringing the claimant’s right to now discontinued in the UK) a recording service communicate the works to the public because, by on its app that allowed premium users to listen to targeting the UK, TuneIn was making the works content later. available to a “new public”. TuneIn was also found liable for infringement by An act of communication? authorisation and joint tortfeasance when it provided the means for users to record radio The Judge addressed the CJEU and UK Case Law streams to listen to at any time. where works had already been the subject of another communication. Where the work was Legal principles initially made available with the consent of the copyright-holder, then in order for there to be Targeting infringement there needed to be a further act of As websites without geographic restriction could communication which either engaged a “new potentially be accessed by users all over the public” or entailed a new mode of transmission. A world, UK copyright law would only be engaged if “new public” would be engaged when the TuneIn targeted UK users. “Targeting” is used to subsequent act of communication was made to allocate responsibility for activity on the internet an audience that exceeded the audience initially under EU law. Highlighting the presence of UK contemplated by the previous, authorised act. focused advertisements that were displayed However, where the initial posting of the work while users were in the website or app and the had been without consent, this initial posting did fact that users could select radio streams for not amount to a relevant act of communication towns and cities in the UK by reference to their and therefore sharing a hyperlink to the work location, the Judge found that TuneIn targeted UK risked amounting to a freestanding act of users. communication capable of infringement under s. 20, depending on what the defendant knew or Communication to the public ought to have known. The posting of a hyperlink Section 20 of the CDPA states that to the infringing work will be treated as a fresh act communication to the public of a work, either by of communication and amount to an infringement broadcasting it or making it available to the public if the person posting it knows, or ought to know, at a place and time as chosen by them via that the original posting was made without electronic transmission, is restricted by copyright. consent. Where the person sharing the link is “Communication to the public” is interpreted acting for financial gain, the Court will presume broadly. It covers any transmission or that they knew that the initial communication was retransmission of a copyrighted work to the without consent. For persons acting otherwise public not present at the place where the than for financial gain, the presumption is communication originates or where the technical reversed and the person posting the link is means of transmission are different. Thus there presumed not to have the requisite knowledge are three elements necessary to determine unless the contrary is proved. In any event, once whether infringement under s. 20 has taken the person posting the link is in fact aware that place: the work was posted without the consent of the rights holder, they will commit an act of • whether there has been a communication; communication if they do not take the link down. • who constitutes the relevant public; and • what the means of transmission are. TuneIn claimed that it merely performed the role A new mode of transmission? of a conventional search engine, a facilitator which provided access to streams of content The Court did not consider that TuneIn used a available elsewhere. The Judge disagreed – he new mode of transmission, as both the original saw TuneIn as intervening directly to provide the radio stream and the TuneIn Radio website made streams to users in the UK. Linking to a the works available via “the internet”, which had copyrighted work that was previously available been found to amount to a single technical online and so theoretically accessible by UK users, means by the CJEU in Svensson v Retriever Sverige but that might not be found by them otherwise, AB Case C – 466/12. would “make it available” to the public. Birss J noted that TuneIn also monitors stream metadata to allow users to search for stations • Category 3 – the Judge distinguished Category playing songs by specific artists and offers 3 stations from Category 1 because of the tailored suggestions of content for individual territorial nature of copyright. While the rights users. The way the site is presented means that holders had given initial consent to license the from the user’s point of view, the content is works to the original overseas radio stations, provided to them at the TuneIn site, rather than by targeting the UK public the TuneIn platform redirecting them to the site of the radio stream. made the work accessible to a new public that These differences were sufficient to make would not initially have been taken into available copyrighted work in a way amounting to account by the rights holder in granting the a communication, and any such communication is license. There was therefore an act of unlawful where a new public is engaged. communication to the public. A new public? • Category 4 – these stations were created exclusively for TuneIn. The provision of these The Judge considered whether the acts of streams amounted to infringement because communication that TuneIn’s platform made there was no prior act of making them possible engaged a new public. available to the public and they were targeted at the UK with no license in place. • Category 1 – there was no infringement because the UK stations were licensed under Practical implications for streaming sites and the relevant UK copyright and in granting the apps license the licensor would have foreseen that the content would be targeted at UK users – The outcome is potentially troublesome for online the same public that TuneIn targets. aggregators who have previously relied on the fact that works available on the internet without • Category 2 – the initial communication of the any restrictive measures are potentially available works by the first streaming site had been to a “public” comprised of all internet users. without the consent of the rights holder, or at least had not fully complied with the rights However, rather than “breaking the internet”, regime under local law. As TuneIn is a profit Birss J’s decision might be seen as merely “fine- making service, the presumption that it knew tuning” it. The upshot of the Court’s decision is about this lack of consent was engaged and that online aggregators who want to benefit from was not rebutted by the fact that TuneIn advertising revenue are likely to face more required all internet radio stations to give a rigorous and costly licensing requirements but warranty that they held the necessary licences. will continue to be able to provide hyperlinks to The making available of Category 2 stations protected works if they proceed with caution. was treated as a first act of communication to Below are the key points to take away from the the public and was done so without the license decision: holder’s consent, amounting to an infringement.