It comes as no surprise that Catch-up TV is a favourite feature among TV viewers. And we get it, being able to access all your favourite TV shows, programs, films, sports and documentaries that you might have missed is awesome. It means you won’t have to miss your team’s next game because you worked overtime or it allows you to catch up on sleep knowing you can watch that late-night TV show tomorrow. As such, Catch-up is one of the best services IPTV companies can offer to keep their customers happy. So why do some IPTV companies offer Catch-up, and some don’t? Well, the thing is, it’s not entirely legal.
The case against Catch-up TV services
Making copies of television programmes so as to make them further available to TV viewers must be authorised by the holder of the copyright or related rights. In that regard, many companies argued that a “private copy exception” applies, allowing them or their users to record content they have a right to view for free or have already paid for, as long as there is no commercial benefit. In simple terms, the companies argue that Catch-up is an evolution of the humble VCR recorder, just like those from the 1970s. However, courts disagreed. According to AnalysisMason, out of 12 cases related to Catch-up, only three ruled in favour of service providers. All the other cases brought to bear have sided in favour of the TV service providers.
For instance, in a case against UK-based cloud service VCAST, a company that was recording Italian TV broadcasted via terrestrial TV content and making it available to their subscribers online, the EU Court of Justice found that recording TV content in the cloud and transmitting it to viewers still qualifies as “communication to the public” and requires the prior permission of the rights holder. The Court stated that the de facto retransmission made by VCAST constitutes a communication to a different public from that of the original transmission and must, therefore, receive the consent of the copyright owner or holder of related rights. And that’s something VCAST did not have.
An exception exists around personal video recording. The case of Save.TV and Shift.TV concluded that online video recording services are only legal in very specific circumstances, providing the recording is initiated by the user, and the operator does not interfere manually with the recording process, and finally, no “master copy” of the recorded broadcast is stored centrally, meaning that, for each user, an individual copy must be created from the very beginning of the recording process. However, when it comes to Catch-up, there is not much to rely on here.
The underlying point here follows from Article 3 of Directive 2001/29. It states that “any communication to the public, including the making available of a protected work or subject matter, requires the right holder’s consent, given that, the right of communication of works to the public should be understood in a broad sense covering any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.”
What does this mean for Catch-up TV services?
It means that without the right holder’s consent, the making of copies of works through a Catch-up service could undermine the rights of that rights holder. Accordingly, such a remote recording service cannot fall within the scope of exceptions or limitations from Article 5(2)(b) of the Copyright Directive. Hence, while the BBC has the right to offer Catch-up for their channels,, very few, if any third party companies are in position to obtain rights for reproduction of the given content.
Where does that leave us?
Put simply, unless a company has obtained reproduction rights from every single right holder individually, the Catch-up services they offer are unlawful. In such cases, it is only a matter of time until these companies end up in court. As an organisation that cooperates with right holders, broadcasters, and collective management organisations, we assure you that it’s a complex and endless task. That is why more and more companies who intend to stay compliant with the law have decided to remove a Catch-up service until there are more favourable policies and regulations in place.