UK: Aereo and TVCatchup: Different courts, different laws, same result

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

In truth, while the Supreme Court's judgment in Aereo is fascinating, its direct applicability in judicial decision making in the UK courts is likely to be limited. Onward retransmission of linear terrestrial channels by internet in he UK has, of course, already been addressed in detail in the TVCatchup litigation discussed above, and the Supreme Court carefully avoided commenting on video on demand/cloud PVR functionality, which it was not asked to address directly.

So might Aereo inform UK law going forwards? We see little prospect of that, partly because of the TVCatchup litigation, but also because the basis of the reasoning is quite different. While TVCatchup turned on the difference between the technical means of the original and subsequent transmissions, Aereo largely sets the technology to one side and focuses on the background to the legislative intention. That reasoning is (a) very US-specific, and (b) not one which it is easy to imagine a UK court following.

As discussed above, there are of course some parallels between the UK and the US scenarios, namely:

1. reinforcement of the point that consumers want the flexibility and functionality provided by new technologies, and that service providers who provide it uncover significant demand;

2. those service providers (at least initially) are often not the 'incumbents' or indeed 'authorised' - this is partly because non-infringing, authorised services can be slower to roll out, not least because of the need to coax underlying rights holders away from proven exploitation models toward new ones.

Increasingly, the UK has a rich range of authorised services encompassing (and indeed significantly surpassing) the functionality provided by TVCatchup. See for example the comprehensive live, on demand, streaming and download services provided by BBC iPlayer (in the free sector) and Sky (in the pay sector). Even the hitherto valid criticism, that authorised services created fragmentation (i.e. counter to the consumer need for 'all my TV in one place'), is beginning to be addressed by multiplatform availability of channels such as iPlayer, or multi-channel availability on platforms such as Sky.

The big question is whether that is hastened or hampered by services such as TVCatchup and Aereo, and the legal protection given against them.

To learn more about the implications of the Aereo decision, read our Aereo and the future of cloud TV report.