C MORE ENTERTAINMENT AB V LINUS SANDBERG, CASE C-279/13, 26 MARCH 2015
Article 3(1) of the Copyright Directive requires EU member states to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works and Article 3(2)(d) of the same includes the broadcasters’ similar right of communication to the public of their broadcasts.
The ECJ’s ruling came in response to a reference from the Swedish Supreme Court. Similar questions had been raised in the Svensson case (Svensson and others v Retriever Sverige AB, Case C-466/12) and as such the only question considered in this instance can be paraphrased as follows: “can 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 provided for in Article 3(2) of the Copyright Directive?”
Mr Sandberg placed clickable links on an internet site by means of which internet users could gain access to a live broadcast, on another site, of ice hockey games without having to go through a paywall to pay the sum charged by the broadcaster to view the games.
C More Entertainment sued Mr Sandberg in the Swedish courts and argued that these ‘paywall circumventing hyperlinks’ amounted to copyright infringement.
Under the Copyright Directive, ‘communication to the public’ includes the concept of making available to the public. The recitals and explanatory material to the Copyright Directive clarified that ‘making available to the public’ referred to interactive on-demand transmissions. As such, live streaming was not covered by the Copyright Directive and so the question arose as to whether member states could extend the definition of ‘communication to the public’ to give wider protection to authors and broadcasters.
The ECJ has ruled that member states can legislate to extend broadcasters’ right of communication to the public under the Copyright Directive to cover acts such as linking to live internet broadcasts, but only so long as this does not undermine the protection of copyright in that member state
This is good news for broadcasters as it confirms that there is nothing to stop member states legislating to bring the provision of links to paywall-protected live streaming within the scope of national legislation.