TuneIn, a US technology company, operates a service where users can access radio stations broadcast around the world. In November 2019, the High Court held that, except in relation to radio stations which are already licensed in the UK, the TuneIn Inc service infringed copyright in the Warner and Sony’s sound recordings by communicating works to the public in the UK by way of its TuneIn app and website which, at a technical level, operate by indexing and providing hyperlinks to foreign radio stations to users in the UK. Both parties appealed. The Court of Appeal dismissed the appeal by TuneIn, Inc, in all respects except in relation to liability for providing the app to UK users with the record function enabled. The Court of Appeal held that the judge at first instance was wrong to find that TuneIn was liable in relation to stations already licensed in the UK for “communication to the public” by providing the app to UK users with the record function enabled. However, the Court of Appeal agreed with the judge at first instance that TuneIn Inc would be liable for authorising infringement by the UK users and as a joint tortfeasor by providing the app to UK users with the record function enabled.
TuneIn argued that the case is one where the Court of Appeal should depart from the existing jurisprudence of the CJEU on ‘communication to the public’: an area of EU copyright law on which there are over twenty CJEU decisions. Under the EU Withdrawal Act 2018, after the transition period for leaving the EU ended on 31 December 2020, the Court of Appeal may depart from CJEU decisions on the same basis that the Supreme Court has had (and still has) power to depart from its own precedents.
The Court of Appeal was unanimous in holding that it should not depart from the existing CJEU jurisprudence ” because to do so would create legal uncertainty for no good reason. Sir Geoffrey Vos, MR held that this was a paradigm case in which it would be inappropriate to do so. Firstly, because ‘communication to the public’ is an area of law derived from international copyright treaties, and wherever possible the courts of states that accede to those treaties should strive to achieve harmonious interpretation of them. It was therefore undesirable for the UK to depart from the CJEU’s approach without exceptionally good reasons. Secondly, in line with the Supreme Court’s longstanding practice (and now the Court of Appeal’s practice), there was no basis to say that the CJEU’s approach was either impeding or restricting the proper development of the law, or leading to results that are unjust or contrary to public policy.
With the stamp of the most senior civil law judge in the country on it, this decision will reassure EU and international copyright owners, as well as businesses and consumers in the UK that Brexit doesn’t mean the UK is likely to go its own way on such a foundational aspect of copyright law for the digital age. Or at least not without legislation.
