Radio aggregator infringed recorded music copyright by streaming radio stations

Insight

10.01.2020

Warner Music and Sony Music (the Claimants) won, in part, their High Court case against the online radio aggregator, TuneIn, for a breach of section 20 of the Copyright Designs and Patents Act 1988 (CDPA); infringement by communication of copyright works to the public.

TuneIn operates a website and app that that enables users to access over 100,000 radio stations in multiple countries. When using the platform, the user is not taken to the respective radio station’s website but can access the audio content via TuneIn’s own website and app. TuneIn profits from this service by displaying third party advertising. Up until 2017, the app also included a recording function.

The Claimants, as holders of exclusive licences that account for over half the UK market for digital sales of recorded music, claimed that TuneIn required a licence to communicate the Claimants’ copyrighted works to the public. TuneIn argued that it simply acted as a directory or search engine and therefore did not require a licence. As TuneIn’s website and app was held to be targeting UK users, UK copyright law was engaged.

Decision

We are not able to cover all the points from the decision here, but below are some of the key takeaways.
The court rejected TuneIn’s argument that it was a search engine as its services went beyond that of a conventional search engine – it provided the content through its own website and app whilst displaying its advertising.
There was no breach of UK copyright law in instances where the streamed radio station was licensed and available in the UK as there had been no communication to a new public. However, there was a communication to a new public in the case of stations not licensed in the UK or which were created specifically for TuneIn (please see our previous article on Svensson and GS Media for previous cases in respect to communicating copyrighted work to a new public.)
The app’s recording function converted the streaming service into a permanent download which constituted a new type of communication to the public. For the period that the recording function was available TuneIn had breached section 20 CDPA in respect to copyright work broadcast on radio stations, both those licensed and not licensed in the UK.
This case distinguishes itself from previous hyperlinking cases as the copyright work was not made instantly available to the public on demand; however, the judge held that providing a hyperlink to the radio station made the work available and was therefore an act of communication for the purposes of the CDPA.
The decision referenced the need to balance a publisher’s freedom of expression with the rights of copyright holders and in this case TuneIn had crossed a boundary in respect to streaming non-UK licensed stations with the extent to which it aggregated and commercialised copyright content.

If you require further information about anything covered in this briefing, please contact David Morgan, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.