ITV v TVCatchup

What is 'communicating to the public' for the purposes of the CDPA 1988? Does it include a situation like this:
'The claimants are responsible for the transmission of a wide range of television programmes on major television channels. There is no dispute that these transmissions are broadcasts within the meaning of section 6 of the Copyright Designs and Patents Act 1988 ("the Act"), that copyright subsists in them and that such copyright belongs to the claimants.

The defendant operates a website at www.tvcatchup.com which allows members of the public to watch live UK television, including the claimants' channels, on their computers, iPhones and games consoles. Any member of the public wishing to access the service must first become a member. He can then select one of over 50 channels by pressing on the appropriate icon, whereupon he is taken to a new screen on which the defendant provides a stream of the programme being broadcast on that channel. There is a slight delay before the member sees the programme because the defendant first shows one of its own advertisements. This is how it makes its money.'

According to Mr Justice Kitchen:
"16 The United Kingdom adopted the measures contained in Article 3(1) in 2003. Section 20 of the Act now confers on the owner of the copyright in each of the kinds of work identified in subsection (1), the right to communicate any such work to the public. Consistently with Article 3 of the Information Society Directive, subsection (2) defines communication to the public as communication to the public by electronic transmission. The definition then identifies two specific ways in which such communication may take place, namely: (a) broadcasting the work and (b) making the work available by electronic transmission on demand. But I do not read the definition in subsection (2) as being limited to these forms of communication. To the contrary, it says in terms that it includes them. In my judgment it also covers all other acts which constitute communication to the public of the work by electronic transmission.

17 Mr Boswood nevertheless submits that one cannot communicate a broadcast other than by means of a mode of delivery which has the characteristics of a broadcast. These characteristics include transmission for simultaneous reception by members of the public, that is to say "one to many". By contrast, he says, the defendant's transmission is not "one to many" but rather "one to one". So, whatever may be the scope of section 20 in relation to other categories of work, in the case of a broadcast it is limited to the single restricted act of broadcasting.

18 I am unable to accept this argument which, in my judgment, confuses the protected work and the restricted act. They are different. The protected work, the broadcast, is the transmission of visual images, sounds and other information for reception by or presentation to members of the public. The restricted act is the communication to the public by electronic transmission of all of those images, sounds and other information. In the same way, section 17 of the Act prohibits the making of a copy of a broadcast and section 18 prohibits the issuing of copies of the broadcast to the public. There is no requirement that the copy itself must be a broadcast. Indeed, it may be no more than a photograph (section 17(4)).

19 There was some dispute between the parties as to whether the entire foundation of section 20 of the Act lies in Article 3 of the Information Society Directive. But they were agreed that this has no bearing on the short point I have to decide, namely whether the fact that the defendant's transmissions are not broadcasts is necessarily fatal to the claim. In my judgment it is not. For the reasons I have given, I am satisfied that the claim does have a real prospect of success. Accordingly, this application must be dismissed."