TuneIn Inc v Warner Music UK Ltd and Sony Music Entertainment UK Ltd

26 March 2021

Jaani Riordan acted as junior counsel for TuneIn in an appeal raising significant issues of copyright law, in particular as to the scope of the right of communication to the public under section 20 of the Copyright, Designs and Patents Act 1988.

TuneIn operates an online platform allowing users to listen to audio streams of radio stations, and provided an app to paying users known as the “Pro” app which allowed them to record from the radio for personal use.  The key issues in the appeal were whether links to foreign radio stations involved communication of streams containing the Claimants’ musical works to a ‘new’ public for the purposes of the communication right, and whether TuneIn had authorised or was a joint tortfeasor with radio stations and users in respect of any infringing transmissions and recordings.

The court allowed TuneIn’s appeal on the question of whether the use of the recording function by UK users of the Pro app involved an unlicensed communication to the public in relation to licensed UK radio stations.  Giving the leading judgment, Arnold LJ held that such an argument confused the communication right with the reproduction right.  The act of communication was the provision of the link to the audio stream; the mere potential for the user to record it does not affect the provision of the stream in any way.

However, the court otherwise dismissed TuneIn’s appeal in relation to foreign stations that were not licensed in the UK. The court declined to exercise its new power to depart from retained EU law.  Lord Justice Arnold gave a number of reasons, including that there had been no change in the relevant national and international legislative frameworks and that the CJEU jurisprudence is helpful in interpreting the concept of communication to the public.  Sir Geoffrey Vos MR added that in his judgment it would be unnecessary and undesirable to depart from retained EU law in this instance.

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