The Court of Justice of the European Union (“CJEU”) has ruled that providing hyperlinks to website content will only be an act of ‘making available to the public’ under Article 3(2) of Directive 2001/29 (the “Copyright Directive”) if it is available at both a place and a time chosen by the user. Therefore access to the streaming of live broadcasts, even where they circumvent a paywall, will not be caught by the provision.

However, this does not preclude Member States from legislating to extend broadcasters’ right of communication to the public to include the act of providing hyperlinks to live broadcasts, provided that this does not undermine copyright protection.

What?

C More Entertainment (“C More”) is a pay-TV channel which provides live streaming via its website in return for payment. In 2007, it broadcast several ice hockey matches. Mr Sandberg created links and posted them on his website, which circumvented the paywall put in place by C More and therefore allowed internet users to view the live broadcasts without paying to do so. C More brought a claim for copyright infringement.

In 2011, the Swedish Court of Appeal overturned a decision of the Swedish District Court, and ruled that no element of the broadcasts met the level of originality required to achieve copyright protection under Swedish law, although related rights had been infringed. C More appealed against this decision to the Swedish Supreme Court, seeking a declaration that it held the copyright in the broadcasts.

In reaching its decision, the Swedish Supreme Court decided to seek guidance from the CJEU and asked the following question:

“May 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 that provided for in Article 3(2) of Directive 2001/29?”

Article 3 of the Copyright Directive states the following:

  1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
  2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:
    1. for performers, of fixations of their performances;
    2. for phonogram producers, of their phonograms;
    3. for the producers of the first fixations of films, of the original and copies of their films;
    4. for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

The CJEU ruled that the concept of ‘making available to the public’ formed part of the wider ‘communication to the public’. It went on to state that in order to amount to ‘making available to the public’ the act must meet both conditions of being accessible at a place andat a time chosen by the members of the public. Here, as the broadcast was streamed live, this did not amount to making available to the public and was therefore not captured by the provision.

So what?

This decision of the CJEU is a further development in the field of copyright and hyperlinks.

In the case of Svensson and others v Retriever Sverige AB, Case C-466/12 (as previously discussed here), the CJEU was asked to decide whether hyperlinks to articles that were already freely available on the internet should be deemed to be an act of ‘communication to the public’ under the Copyright Directive. The CJEU held that the provision of clickable links amounted to ‘making available’ and was therefore an ‘act of communication’ caught by the Copyright Directive. As the same technical means had been used for the communication (here, via the internet), it would only infringe the copyright holder’s rights if it was directed at a ‘new public’ to the one that the original communication was made. In Svensson, the hyperlinks were available to the same public who would have had the right to access the original communication, and so there was no new public, and therefore the provision of hyperlinks did not amount to infringement.

The CJEU developed this principle in the case of BestWater International, Case C-348/13. In this case, the alleged infringer ‘framed’ a short video on its website, from a third party website (YouTube). This case was particularly interesting, as the rights holder claimed (unlike in Svensson) that the video had been uploaded to YouTube without his consent. This had no bearing on the decision; the CJEU reiterated its judgment in Svensson and held that, as there was no transmission to a new public (the video itself was freely accessible on YouTube), and the communication was via the same technical means, there was no ‘communication to the public’ and therefore no infringement.

The decision in C More appears to be in line with the decisions in Svensson and BestWater, where the contents were, by their very nature, available ‘on demand’. The decision of the CJEU not to extend the wording of the Copyright Directive to include content that is streamed live may be considered highly unfair to broadcasters of such content. However, the CJEU stated that the wording of Article 3(2) of the Copyright Directive did not preclude Member States from protecting the broadcasting and communication to the public of transmissions made by broadcasting organisations through other means, provided that this did not undermine the protection of copyright. It highlighted the possibility of national laws to implement Article 8(3) of Directive 2006/115 (the Rental and Lending Rights Directive), which gives broadcasters the exclusive right to provide access to broadcasts in return for a fee. The decision in C More is therefore perhaps less surprising than it may at first appear.