Robert Howe QC and Jaani Riordan appeared for the Defendant in an important test case concerning the scope of the right of communication to the public.
The Claimants (Warner and Sony) were music labels who owned or licensed the copyright in numerous sound recordings. TuneIn was a platform offering a directory of hyperlinks to freely accessible radio streams from around the world that were published on the websites of local and foreign radio stations.
The claim was a test case to determine whether a licence was required to link to these streams. The court considered four categories of Sample Stations:
- Stations which were licensed in the UK to communicate the Claimants’ works to the public;
- Stations which were not licensed anywhere in the world;
- Stations which were licensed in a territory other than the UK; and
- Premium Stations which were available to paid subscribers only, with no advertisements.
The case centred on the correct interpretation of the right of communication to the public.
The court drew a distinction between TuneIn and a “conventional search engine” or linking service. In particular, the court found that TuneIn aggregates streams, collates metadata that allows for searches by artist, embeds streams into its own interface, and inserts audio advertisements before streams begin playing.
In the case of stations licensed in the UK, the court concluded that there was no “new public” addressed by TuneIn’s links, since the Claimants were treated as having consented to the act of communication to the public in the UK by the radio station.
For the remaining categories of station, the court concluded that TuneIn was re-targeting that foreign content to the UK by linking to it. As such, it was communicating the content of such streams to a “new public” that was not taken into account by the copyright owner, even if the first act of communication was licensed.