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Court of Appeal upholds copyright infringement decision against digital radio aggregator

12 April 2021. Published by Alessandro Cerri, Associate and David Cran, Head of IP and Tech

The Court of Appeal has refused TuneIn's appeal of a 2019 judgment finding that it had infringed the copyright of Warner and Sony by linking to online radio stations.

TuneIn Inc v (1) Warner Music UK Limited; (2) Sony Music Entertainment UK Limited [2021] EWCA Civ 441

This case attracted a lot of media attention in 2019, particularly in the music industry, when TuneIn, a US-based digital radio aggregator, was found by the High Court to have infringed the copyright of Warner Music and Sony Music Entertainment (which, between them, account for about 43% of the global market for digital sales of recorded music).

TuneIn had argued that TuneIn Radio was nothing more than a directory or search engine, which indexed and aggregated links to digital radio stations which were already freely available online, and that a finding against it would "break the internet".

However, the Court considered that TuneIn was different from a conventional search engine as (amongst other things) users could stream music from the various radio stations directly on TuneIn's website (as a 'one-stop shop', rather than being forwarded on) and TuneIn played its own advertisements.

The High Court therefore found that TuneIn's links, which it had repackaged and commercialised, amounted to a "communication to the public" for the purposes of copyright infringement, and - where the relevant radio station was not licensed in the UK - this was a communication to a "new public" which was not authorised by the copyright owner.

Only the links to radio stations which were licenced in the UK by PPL (e.g. BBC Radio 2 and Classic FM) were found not to be infringing, as TuneIn was simply connecting UK users to licensed UK radio stations.

TuneIn appealed to the Court of Appeal, which handed down its judgment last month essentially upholding the High Court's judgment, to the record labels' great relief. 

This decision, although unsurprising, highlights to a certain extent the tension between music licensing, which is still carried out to a large extent on a territory-by-territory basis by local collecting societies, and the increasingly globalised music streaming landscape.

The full judgment is available here