TuneIn loses appeal against Warner and Sony in the UK

By Emmanuel Legrand 

The Court of Appeal of England and Wales has sided with record companies Warner Music Group (WMG) and Sony Music Entertainment (SME) in the copyright infringement case against TuneIn by dismissing the appeal lodged by the online radio stations' platform.

  The ruling could have major implications for copyright infringement cases in the UK since the appeals court aligned with the EU jurisprudence on hyperlinks, although the UK has left the European Union. It should also force TuneIn to ensure that it has the proper licensing agreements in place with record labels in the UK. 

  TuneIn, as well as WMG and SME, were appealing a November 2019 court decision, after the two record companies sued TuneIn in 2017, claiming that the service needed proper licenses for British users of the service to be able to access legally the radio stations featured on TuneIn. 

Infringing copyright in sound recordings

  TuneIn argued that it was simple providing links to stations and was not a distributor of music services. 

  The initial ruling affirmed that TuneIn did need licenses to offer access to stations from outside the UK and their lack thereof constituted copyright infringement, but it also ruled that this provision did not apply to radio stations from the UK featured by TuneIn, as they were already licensed by neighbouring rights society PPL. 

  “In summary the main judgment decided that the Defendant (a US technology company which operates an on-line platform providing a service enabling users to access radio stations around the world) had infringed the Claimants’ copyright in sound recordings of music when that music was played through the Defendant’s system (website and apps) from internet radio stations," noted the Court of Appeals. 

A disservice to the radio industry

  A spokesperson for TuneIn said the decision was "fundamentally bad for freedom of expression and is a disservice to the radio industry and listeners worldwide.” 

  This ruling leaves TuneIn with two options: negotiate licensing agreements to cover access in the UK to stations from around the world, or block their access to British consumers, which was already the case. 

  WMG said the verdict was "very welcome" and hoped that TuneIn "will accept that it needs to operate on a fully licensed basis, fairly paying rights holders for the music it uses to generate revenue." 

Respect artists and labels

  For SME, the ruling will help ensure that "music creators are not deprived of compensation for their work, that TuneIn does not have an unfair competitive advantage in relation to licensed services, honours their legal obligations and respects the need for artists and record labels to receive a fair return on the essential value they provide.”

   The IFPI, which represents the three main major record companies, said the ruling "confirms that TuneIn can only operate with appropriate licenses from right holders and therefore cannot continue to blatantly disregard its obligation to ensure that its service is lawful. This is a big win for those investing in and creating music, reaffirming that services, like TuneIn, which generate revenues by providing online access to recorded music must be licensed to do so."

   Another interesting aspect of the ruling is that the UK Court of Appeals aligned with EU courts on hyperlinks. "The case is a UK test case on infringement of copyright by communicating works to the public by hyperlinks," wrote Penelope Thornton and Alastair Shaw of Hogan Lovells in their analysis of the decision published in World IP Review. 

Follow European jurisprudence

  They added: "It is also important because it is the first time the UK court has had to consider whether it should follow the jurisprudence of the Court of Justice of the European Union (CJEU) in the area of 'communication to the public' now the UK has left the EU." 

  For Thornton and Shaw, it was significant that the judges "were unanimous in finding that it was not necessary or desirable for the UK Court to depart from the CJEU’s jurisprudence on the right of ‘communication to the public’, following Brexit."