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Court Of Appeal upholds ruling in majors v TuneIn case
By Chris Cooke | Published on Monday 29 March 2021
The UK’s Court Of Appeal last week pretty much upheld an earlier ruling that concluded that radio aggregation app TuneIn is liable for copyright infringement for previously making non-UK radio stations available to a UK audience. Claims by TuneIn that it is just a sophisticated search engine were again rejected.
Sony Music and Warner Music together sued TuneIn through the UK courts arguing that the radio app needed its own licences for any music contained in the broadcasts it was helping its users access.
For its part, TuneIn countered that it was just a sophisticated audio-centric search engine that simply connected people to a radio station’s own stream and therefore it wasn’t in itself involved in any communication to the public of any music, and therefore it didn’t need licences.
In the original high court case, a distinction was made between the UK and non-UK stations that are available via the TuneIn app. The former already have licences from the UK music industry’s collecting societies, so PPL for recordings and PRS for songs. The latter may have similar licences from collecting societies in their home countries, but those licences will not cover listening in the UK.
The high court ruled that TuneIn didn’t need its own licences when connecting UK users to licensed UK radio stations. However, it said that when it connected UK users to non-UK stations – which are not licensed for the UK – music was being communicated to the public without licence, and TuneIn itself was liable for that. It was the latter part of the ruling that TuneIn sought to appeal. However, the higher court backed the original decision.
In a lengthy judgement that considers how the communication element of the copyright has been applied to the digital world in both the UK and the European Union – and also the extent to which a UK court should still consider precedent in EU law – the appeal judges ultimately concluded that: “TuneIn Radio is not a conventional search engine, and it does much more than provide links to its users”.
Even if music licences issued to a foreign radio station in its home country allow for services like TuneIn to aggregate and basically re-communicate any music via its app, “there is no reason to conclude that that authorisation extended to the UK public targeted by TuneIn Radio’s communication”.
There was one small part of the original ruling that the appeals court did overturn in relation to the premium service TuneIn used to offer in the UK whereby users could make recordings of a radio station’s output.
Offering the recording function on UK broadcasts did not create a new communication to the public, the appeals court ruled. However, that doesn’t change things hugely, as the appeal judges concurred with the lower court that subscribers who used that function may well have been infringing the reproduction element of the copyright – in any of the music included in their recordings – and that TuneIn would be liable for authorising that infringement.
So, although the lower court ruling was a mixed bag judgement – in that it did say TuneIn could include UK radio services in its UK app without getting its own licences – last week’s court of appeal decision – focused as it was on foreign stations and the premium record function – was very much in the favour of Sony and Warner.
Which means, unsurprisingly, the ruling was welcomed by the majors. A spokesperson for Warner Music told reporters: “This appeal verdict is very welcome. We continue to hope that TuneIn will accept that it needs to operate on a fully licensed basis, fairly paying rightsholders for the music it uses to generate revenue. Such a move would be to the benefit of rightsholders and listeners in the UK and elsewhere. We stand ready to enter into licensing negotiations to help facilitate that outcome”.
The International Federation Of The Phonographic Industry also welcomed the judgement, presumably hoping that it could force TuneIn’s hand on licensing matters beyond the UK. “Today’s decision by the Court Of Appeal of England and Wales confirms that TuneIn can only operate with appropriate licences from rightholders and therefore cannot continue to blatantly disregard its obligation to ensure that its service is lawful”, it said.
“This is a big win for those investing in and creating music”, the trade group added, “reaffirming that services, like TuneIn, which generate revenues by providing online access to recorded music must be licensed to do so. Operating lawfully with an appropriate licence is essential if music creators are to be fairly compensated”.
Needless to say, TuneIn was disappointed with the ruling. A spokesperson for the app told Law360: “As radio transforms into a digital medium on a global scale, we believe this decision is fundamentally bad for freedom of expression and is a disservice to the radio industry and listeners worldwide”.
TuneIn has already reduced its service in the UK on the back of the high court ruling, blocking access to international music stations. Presumably, those limitations will now stay in place in the long-term.
