By a judgment issued on last March 26th, the European Court of Justice had ruled on the interpretation of article 3, paragraph 2, of Directive 2001/29/CE, in order to clarify if the Member States give wider protection to the exclusive right of authors by enabling “communication to the public” to cover a greater range of acts than those provided for in the abovementioned article.
In particular, the Court has been empowered by the Sweden Supreme Court, in relation to the lawsuit brought by the C More Entertainment AB (a pay TV channel) against Mr Sandberg, concerning the provision, on an internet site, of links enabling internet users to access, on the site of a broadcasting organisation, live broadcasts of ice hockey matches, without having to pay the fee required by that organisation for such access.
In those circumstances, the question referred by the Court must be understood as relating in its essence to whether article 3, paragraph 2, of Directive 2001/29 must be interpreted as precluding the Member States from also granting the broadcasting organisations referred to in article 3, paragraph 2, let. (d) an exclusive right as regards to acts, such as those at issue in the main proceedings, which could be classified as acts of communication to the public, but which do not constitute acts of making available to the public the fixations of their broadcasts in such a way that members of the public may access them from a place and at a time individually chosen by them.
In this regards, the Court first of all pointed out that the objective of the directive in question is to harmonise copyright and related rights as far as is necessary for the smooth functioning of the internal market and not to remove or prevent differences between the national legislations, which do not adversely affect the functioning of the internal market.
On this matter, the Court has, furthermore, specified that the recital 16 and the article 8, paragraph 3, of the directive 2006/115 gives to the Member States the option of granting to broadcasting organisations an exclusive right to authorise or prohibit acts of communication to the public of their transmissions on conditions different from those laid down in article 8, paragraph 3, and in particular transmissions to which members of the public may obtain access from a place individually chosen by them, it still being understood that, as provided for in article 12 of Directive 2006/115, such a right must not affect the protection of copyright in any way.
Having regard to all the foregoing considerations, the answer to the question referred is that the article 3, paragraph 2, of Directive 2001/29 must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in article 3, paragraph 2, let. (d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright.