James Mellor QC and Jessie Bowhill appeared for the claimants and Martin Howe QC for the defendant on this further hearing following the previous judgment given at the conclusion of the trial ([2011] EWHC 1874 (Pat); [2011] FSR 40). Floyd J had deferred giving judgment on certain issues to await the judgment of the ECJ in FAPL v QC Leisure. In the light of that judgment, he now decided that a defence under Article 5(1) of Directive 2001/29 would apply to the creation of transient copies in the defendant’s servers and in end users’ devices if the streaming did not amount to an unlawful communication to the public and so there was no point in making a further reference on these issues. However, he referred a question on the interpretation of ‘communication to the public’ in Article 3 of the Directive. He declined to refer any question relevant to the scope of section 73 of the CDPA 1988 (defence for cable retransmission of “qualifying broadcasts”) to the ECJ because this provision of the UK Act was clear.
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