An interesting ruling on live streaming of sports events has been issued by the Court of Justice of the EU (CJEU) in the C More Entertainment AB v Linus Sandberg case on 26 March 2015 (C-279/13).
In two preceding related cases, Svensson (C-466/12) and BestWater (C-348/13), the CJEU clarified that
- providing a clickable link to, embedding a link and framing a copyright work could constitute an act of ‘communication to the public’, and thus potentially give rise to copyright infringement, provided that
- such communication is directed to a “new public”, i.e. a public that was not taken into account by the copyright holders (e.g. all potential Internet users compared to a restricted Internet public – allowed to access to a specific content on a website subject to the payment of a fee – are a “new public”).
In the Svensson case, the CJEU held that the public targeted by the initial communication consisted of all potential visitors of the site concerned, since the latter was not subject to any restrictive measure and all Internet users could have free access to them. Therefore in that case there was no copyright infringement (Italian speaking people may read a deeper analysis of our Gianluigi Marino on this case on our blog L’Ora Legale).
In C More Case, the Court was asked to provide a clarification on a related issue: in accordance with InfoSoc Directive (Directive 2001/29/EC) Member States are to provide for the exclusive right for broadcasting organisations to authorise 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 (“on-demand”), but are they allowed to provide broadcasting organisations a wider protection than this? The answer of the Court is “yes” under certain conditions.
- The case
In 2007, C More Entertainment – a pay-TV station which, inter alia, broadcasts live on its internet site, for payment of a fee, ice hockey matches – sued Mr Sandberg for copyright infringement, since he created links enabling the paywall put in place by C More Entertainment to be circumvented. Indeed, via those links, internet users could access the live broadcasts of ice hockey matches by C More Entertainment for free.
In the first instance, Mr Sandberg was found guilty of an infringement of the copyright. In the appeal, the court held that C More Entertainment was not the holder of a copyright, but of related rights, which had been infringed.
C More Entertainment brought an appeal against that judgment before the Högsta domstolen (Swedish Supreme Court), seeking a declaration that it is the holder of copyright and to have the amount of damages due to it reviewed and increased. The Swedish Supreme Court decided to stay the proceedings and to refer the question above to the CJEU for a preliminary ruling.
- What the CJEU said
The CJEU clarified that, in accordance with the InfoSoc Directive, the exclusive rights of broadcasting organisations are infringed provided that two cumulative conditions are met:
- the public may access the protected work from a place and
- at a time
individually chosen by them.
This is clearly the case of “on-demand” contents. But what about live broadcasting on the Internet? Are broadcasters protected against unauthorized live streaming?
According to the CJEU, transmissions broadcast live on Internet are outside the scope of protection granted to broadcasting organisations by InfoSoc Directive.
However, this is without prejudice to the protection granted to copyright holders.
Moreover, InfoSoc Directive is subordinate to another EU Directive (Directive 2006/115), which gives the Member States the option of providing for more protective provisions with regard to the broadcasting and communication to the public of transmissions made by broadcasting organisations.
Such an option implies that the Member States may grant 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 InfoSoc Directive.
- What about Italy?
Italian Copyright Law grants broadcasters, inter alia, the exclusive right to authorize the “temporary or permanent” reproduction of their transmissions. Although live streaming is not specifically mentioned, it seems to be included in the concept of “temporary” reproduction.
The CJEU decision in C More case seems to have strengthened the position of broadcasters in Italy vis-à-vis live streaming services, that are becoming more and more popular, also in social networks. This might have an even stronger impact in view of the expeditious notice and take procedure for online copyright breaches introduced last year in Italy (covered on our blog here).