On 26 March 2015 the Court of Justice of the European Union (“CJEU”) held that the EU Copyright Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related right in the information society) must be interpreted as not precluding national legislations to extend the exclusive rights of broadcasting organizations beyond the legal protection as set forth in Article 3(2)(d) of the EU Copyright Directive, provided that such protection does not undermine that of copyright.

The issue before the Swedish Supreme Court concerned the alleged infringement of the rights of C More Entertainment AB. C More Entertainment is a pay-TV station that offers live streaming of ice hockey matches on its website. Mr Sandberg places links on his website that allows Internet users to access C More Entertainment’s website and watch the live streaming of two hockey matches for free. In this context, the Swedish Supreme Court submitted five questions to the CJEU, but subsequently decided to withdraw four of them (which were already answered by the recent Svensson case C-466/12). In substance, the remaining question was: “May the Member State (MS) give wider protection to the exclusive right of authors by enabling ‘communication to the public’ to cover greater range of acts than those provided for in Article 3(2) of the EU Copyright Directive?”

As an introductory point, the CJEU restates Article 3(2)(d) of the EU Copyright Directive whereby “MS are to provide for the exclusive right for broadcasting organizations to authorize or prohibit the making available of fixations of their broadcasts to the public, in such a way that members of the public may access them from a place and at a time individually chosen by them.” The CJEU clarifies that the “making available to the public” was actually included within the concept of “communication to the public”referred to in Article 3(1) of the Directive. In any event, in order for an act to fall under the category “making available to the public” and thus to benefit from the protection of Article 3(2)(d), this act must (i) make it possible for the public to access the protected work from a place chosen by them and (ii) at a time chosen by them. However, the transmissions made available by Mr Sandberg cannot be considered as amounting to“interactive on-demand transmissions”. Nevertheless, the Swedish legislation affords a wider protection as it is not limited to acts that make works available “on demand”.

The CJEU states firstly that the objective of the EU Copyright Directive was not to remove any differences between national legislations that do not adversely affect the functioning of the internal market. Therefore, the EU Copyright Directive has only partially harmonized the copyright legal framework. Then, the Court, relying on Directive 2006/115 on rental and lending rights and certain rights related to copyright, affirms that MS should be able to provide, on a national level, for wider protection than the protection afforded under the EU Copyright Directive. The Court concludes that Article 3(2) of the EU Copyright Directive does not preclude an MS to grant broadcasting organizations the exclusive right to authorize or prohibit acts of communication to the public (with no consideration about whether this act also represents an act of making available to the public) of their transmissions, but provided that such protection does not undermine that of copyright. This ruling is in line with Recital 7 of the EU Copyright Directive whereby “the directive does not have the objective of removing or preventing differences that do not adversely affect the functioning of the internal market”.

This case is particularly interesting in the way that it moves away from the precedent CJUE ruling in the Svensson case. In the latter case, the CJUE was asked whether an MS could extend the protection afforded to the copyright holders through an extension, on a domestic basis, of the notion of “communication to the public” under Article 3(1) of the EU Copyright Directive. The CJUE answered in the negative, stating that if it had held otherwise, the objective pursued by the EU Copyright Directive would have been undermined. The CJUE held that allowing the MS to widen the concept of“communication to the public” would necessarily affect the functioning of the internal market. Conversely, in the present case, the CJUE, presumably because it reads the EU Copyright Directive in conjunction with Directive 2001/29, allows MS to extend the rights set forth in Article 3(2) of the EU Copyright Directive.

The case (C-279/13) can be found on http://curia.europa.eu.