Hyperlinks killed the radio star: High Court of England and Wales “Tunes In” to the radio streaming debate

Last month, the High Court of England and Wales delivered its judgment in a test-case for copyright and Internet communications: Warner Music UK Ltd & Sony Music UK Ltd v TuneIn Inc. [2019] EWHC 2923.

The case concerned the activity of “Tune-In” an online platform that allows users to access over 100,000 Internet radio stations worldwide.

The claimants, Warner and Sony decided it was time for Tune-In to face the music and sued them for copyright infringement.

How does Tune-In work?

TuneIn is a US technology company that provides a service called “TuneIn Radio” via an app and website. TuneIn Radio users are linked to streams from thousands of radio stations, broadcast from different locations throughout the world.  TuneIn Radio is monetised through advertising and subscriptions. TuneIn’s apps are also pre-installed on many devices including Bose, PlayStation and Sonos.

When a user opens TuneIn they are presented with various internet radio stations.  Users can browse based on genre and on artist.[1] A search by artist will produce a collection of radio stations playing music from that artist in real time. The user selects the icon and, after a pre-roll advertisement, the radio station starts playing from the device.

Importantly, TuneIn does not collect, transmit or store any third-party audio content. Instead, it connects users to radio stations’ online streams.

The allegations

Warner and Sony own or hold the exclusive licences to copyright in sound recordings of music. Together they account for more than half the market of digital sales of recorded music in the UK and about 43% globally.  Suffice to say they were singing to the same tune in these proceedings.

A traditional radio station playing recorded music needs a licence from Warner and Sony. These licences are often administered through collecting societies in the stations’ relevant jurisdiction. Warner and Sony alleged that by providing links to users, TuneIn infringed copyright in the sound recordings played by the radio stations.  Specifically, Warner and Sony claimed that by communicating the works to the public, TuneIn was in breach of section 20 of the Copyright, Designs and Patents Act 1988.

TuneIn claimed that it provided nothing more than a search engine or directory, which linked users to content hosted at a different location.

Justice Birss neatly summarised the position of the parties in the opening paragraph of the judgment:

A balance has to be struck between the interests of the copyright owner in protecting its exclusive rights, and the interests of the public in freedom of access to the internet. [Warner and Sony] say that a finding for [TuneIn] will fatally undermine copyright.  [TuneIn] says that a finding for [Warner and Sony] will break the internet.

The decision

Justice Birss divided the radio stations available on TuneIn Radio into four categories:

  1. radio stations with music licenses in the UK (category 1);
  2. radio stations without music licenses in the UK or in foreign territories (category 2);
  3. radio stations with music licenses in foreign territories, but not in the UK (category 3); and
  4. premium radio stations created for TuneIn, available to premium TuneIn subscribers (category 4).

His Honour found that:

  • TuneIn’s unlicensed provision of links to category 1 radio stations does not infringe copyright; and
  • TuneIn’s unlicensed provision of links to category 2, category 3 and category 4 radio stations infringes copyright.

His Honour’s reasoning can be explained as follows:

  • TuneIn’s activities constituted an act of communication of the sound recordings to the public. TuneIn’s service could be distinguished from a conventional search engine.  It intervened directly in the provision of hyperlinks to streams and made editorial decisions about which links to publish.
  • For category 1 – the radio stations were already licensed in the UK, meaning the sound recordings were freely available to the general public, including TuneIn users with the consent of the rights holder. TuneIn did not communicate the sound recordings to a “new public”.
  • For category 2 – the radio stations were not licensed overseas or in the UK. The provision of unlicensed streams by TuneIn was a clear act of infringement. TuneIn was presumed to know that these stations were unlicensed. Contractual warranties by the radio stations that they held the necessary licenses did not rebut that presumption.
  • For category 3 – the radio stations were licensed to communicate the sound recordings in the relevant foreign territory. However, TuneIn’s act of communication was to a “new public” in the UK. This communication to a “new public” was unlicensed.
  • For category 4 – the provision of unlicensed streams to radio stations created by TuneIn was a clear act of infringement.

Lastly, Birss J found that TuneIn’s service as a whole, was targeted at the UK and therefore UK copyright law was engaged. Some factors weighing in support of this conclusion were:

  • the TuneIn website had over 1 million UK visitors per month and over 5 million UK users of its free service (as of January 2019);
  • advertisements were plainly targeted at the UK and denominated in pounds sterling; and
  • TuneIn provided local radio categorisations and search options specifically by reference to towns and cities within the UK.

The implications

The decision is the third instalment in a series of CJEU decisions on hyperlinking over recent years (see Svensson, C-466/12 and GS Media, C-160/15) and provides a useful summary of the complex principles that apply to hyperlinking and copyright infringement.

Online platforms premised on connecting their users to third party content (whether it be music, art or photographs) must carefully consider the licences they require and consider territorial licensing restrictions when making available or linking to third party content.

Lastly, this decision also calls into question the current legal position in relation to hyperlinking in Australia, where Courts have held that the provision of hyperlinks does not amount to a “communication to the public” but may constitute an “authorisation” of copyright infringement by others.   Authorisation remains a “hot topic” in Australian copyright law – where, most recently, organisations representing rights-holders argued in the ACCC’s Digital Platforms Inquiry’s Preliminary Report submissions for an expansion of the concept to include (amongst others) social media networks. Whether a hyperlinking authorisation in Australia could overcome the obstacles in iiNet remains to be seen.

[1] TuneIn used to offer a search by song. However, TuneIn stopped this search function before the trial was heard.