On 1 November 2019, the High Court of England and Wales published its decision in the case between Warner Music and Sony Music (the claimants), and the radio app provider, TuneIn (the defendant). The case, which threatened to “break the Internet” (according to the defendant), hinged on the interpretation of the copyright law concept of ‘communication to the public’ in circumstances where online radio streams licensed locally are made available globally by way of an internet link. The Court rejected TuneIn’s defence that it was simply a sophisticated search engine for radio streams, and found that both the tech company and the radios were communicating music to the public. With no licences covering streams beyond each radio station’s home state, TuneIn was found to have infringed the rights of the two major record labels.
In this article, we consider the main implications of the decision and why, for certain types of radio station, they are likely to have a limited impact following the transposition of the new Satellite and Cable directive (Directive 2019/789) across the European Union.
Major record companies Warner Music UK Ltd (“Warner Music”) and Sony Music Entertainment UK Ltd (“Sony Music”) account for more than half the market for digital sales of recorded music in the UK, and about 43% globally.
TuneIn Inc. (“TuneIn”) is a San Francisco-based developer of an online platform which provides a service that indexes and enables its users to access the online feeds of radio stations from around the world. TuneIn provides its users with hyperlinks to radio streams that are freely available on the Internet. TuneIn launched in the early noughties as a rudimentary service, using web-crawlers to index radio streams without seeking permission from those radio streams. Later, TuneIn introduced ‘broadcaster terms’, which all new stations were required to accept. Over the years, TuneIn capitalised on technological innovations and bolstered its monetisation of its service by using deep links, pre-roll and in-stream advertisements targeted at users within their particular territories.
As it became more popular, TuneIn’s development and increased technological sophistication captured the attention of music rightholders. In 2017, Warner Music and Sony Music (together, the “Claimants”) initiated a claim against TuneIn before the High Court, alleging that TuneIn was more than a mere Internet intermediary and that TuneIn was, in effect, infringing on the rights they hold in their respective sound recordings, by allowing users based in the UK to access online radio streams without a licence to do so.