Member states freed up to protect broadcasters
C More Entertainment AB v Linus Sandberg (Case C-279/13)
The Court of Justice of the European Union ("CJEU") has provided a ruling confirming that individual Member States can give broadcasters wider protection than is set out in EU Directive 2001/2009 (the "InfoSoc Directive") in respect of their rights in live-stream broadcasts of sporting fixtures. The extent to which broadcasters' rights are protected has not been harmonised, with the result that different levels of protection may apply in different Member States.
While this is one of a number of recent cases concerning issues around hyperlinking and communication to the public, it does not provide any clarification as to what constitutes "freely accessible" content that can be embedded or linked to without there being an infringement of copyright. This is because the live-stream broadcasts of ice-hockey matches relevant to the case did not have the necessary originality for copyright protection. It does, however, give the green light to Member States to introduce legislation to extend the rights of broadcasters beyond what is set out in Article 3(2) of the InfoSoc Directive so as to encompass live-streaming (and not just "on-demand" transmissions) provided that this does not undermine the protection of copyright.
The claimant, C More Entertainment, streamed live ice hockey matches on its website. This live-stream was behind a paywall so users had to pay to view each match. The defendant, Mr Sandberg, placed a hyperlink to the live stream on his own website, which therefore allowed visitors to circumvent the paywall and watch the matches for free.
C More Entertainment objected to this in the Swedish Courts. The first Court held that C More Entertainment was not the holder of copyright in the live-streams in issue because none of the work contributed by the commentators, cameramen or picture producers, either alone or in combination, reached the level of originality required for copyright protection. This aligns with the CJEU decision in FA Premier League v QC Leisure (C-403/08) and Karen Murphy v Media Protection Service (C-429/08), which determined that the live transmission of a Premier League football match was not itself protected by copyright, since sporting events could not be regarded as intellectual creations classifiable as works within the meaning of the InfoSoc Directive.
Nevertheless, C More Entertainment did have related broadcasting rights which had been infringed. C More Entertainment appealed before the Swedish Supreme Court, which decided to stay the proceedings and ask the CJEU for clarification on a number of issues.
Article 3(1) of the InfoSoc Directive provides 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.
Article 3(2)(d) of the InfoSoc Directive provides that Member States shall provide broadcasting organisations with exclusive rights to authorise or prohibit the making of fixations of their broadcasts available to the public, in such a way that the public can access them from a place and time individually chosen by them.
Article 8(3) of EU Directive 2006/115 (the "Rental and Lending Directive") requires Member States to provide broadcasting organisations with the exclusive right to prohibit the rebroadcasting or communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.
Recital 16 of the Rental and Lending Directive states that Member States should be able to provide for more far-reaching protection for owners of rights related to copyright than that required by the provisions laid down by that Directive in respect of broadcasting and communication to the public.
Recent cases on "communication to the public"
Recent cases have raised questions as to whether hyperlinking or embedding copyright content could constitute an act of "communication to the public". In Nils Svensson & Ors v Retriever Sverige (C-466/12) ("Svensson"), the CJEU ruled that the owner of a website may use 'hyperlinks' to redirect Internet users to protected works available on other websites without the authorisation of the copyright holder of the works, provided the works on the linked website are 'freely accessible', i.e. can be accessed by anyone using the Internet. The reasoning behind this follows a whole raft of EU case-law on this issue of communication to the public in which the concept of a "new public" has been created; the courts determining that, if the unauthorised communication in question is to a "new public", being one not envisaged by the original communication, then the unauthorised communication will infringe copyright. In contrast, where the original copyright work has been made accessible to all internet users (so not, for instance, placed behind a paywall or password protected), then any subsequent unauthorised hyperlinking to, or embedding of, that content is not to a new public and will not constitute copyright infringement. This was confirmed by the CJEU in the case of BestWater International GmbH v Michael Mebes, Stefan Potsch (C-348/13) (“BestWater”)., This essentially means that linking to content does not infringe copyright as long as content is "freely accessible".
Questions Referred to CJEU
The initial questions referred by the Swedish Court in 2013, included whether it was relevant that access to a copyright work the subject of a hyperlink was in any way restricted. Many therefore hoped that the CJEU would provide guidance as to what constitutes "freely accessible" information and, in particular, whether material restricted behind a paywall could not be considered to be "freely accessible".
However, following the Svensson and BestWater decisions, the Swedish Court decided that it only required clarification on one issue: whether Member States may give wider protection to the exclusive right of broadcasters by enabling 'communication to the public' to cover a greater range of acts than provided for in Article 3(2) of the InfoSoc Directive including, for instance, live streaming as in this case?
The CJEU decided that an opinion from the Advocate General was unnecessary, presumably because of the significantly reduced scope of the reference.
As preliminary points, the CJEU confirmed first that "making available to the public" in Article 3(2) of the InfoSoc Directive forms part of the wider "communication to the public" set out in Article 3(1). Secondly, it noted the requirements in Article 3(2) that an act of "making available to the public" required members of the public to access the protected work at a time and place individually chosen by them. This covers "on demand" transmissions and not transmissions broadcast live on the Internet such as live streaming of sports matches which are not accessed at a time chosen by the individual.
In relation to the main question about the legality of wider protective provisions for broadcasters, the Court noted that Recital 7 of the InfoSoc Directive states its objective as being the harmonisation of copyright so far as this is necessary for the smooth functioning of the internal market. However, the objective of the Directive was not to remove or prevent differences between the national legislations which do not adversely affect that function. The Court thought it clear that copyright and related rights are only partly harmonised across the EU.
Furthermore, the Court confirmed that the InfoSoc Directive was based on principles and rules already laid down in previous Directives. Its provisions are therefore without prejudice to these previous directives, including Directive 92/100/EEC, the predecessor to the Rental and Lending Directive. Whilst Article 8(3) of the Rental and Lending Directive requires Member States to provide broadcasting organisations with the exclusive right to prohibit the rebroadcasting or communication to the public of their broadcasts, it is apparent from Recital 16 of that Directive that Member States should also be able to provide for more far-reaching protection for owners of rights related to copyright in respect of broadcasting and communication to the public.
Accordingly, the CJEU concluded that Article 3(2) must be interpreted so as not to preclude national legislation from extending the exclusive right of broadcasting organisations as regards acts of communication to the public, provided this extension does not undermine the protection of copyright. National legislation may therefore extend the right of broadcasters referred to in Article 3(2)(d) so that live internet broadcasts of sporting fixtures might constitute acts of communication to the public.
It is disappointing that the CJEU was ultimately only asked one question in this case so couldn't provide more direct guidance on whether linking to restricted content can constitute an infringement of copyright.
The decision does come as some surprise because it appears to be a move away from harmonisation across the EU in the area of copyright and related rights and acknowledges that there may be different levels of protection in different EU countries. The Court confirms that the EU legislator has only partially harmonised copyright and related rights to the extent that is required for the proper functioning of the internal market.
Allowing Member States to extend broadcasters' protection beyond Article 3(2) is also a different approach to that previously taken by the CJEU in relation to Article 3(1) of the InfoSoc Directive. At para 37 of the Svensson ruling the CJEU stated that "Article 3(1) of the InfoSoc Directive cannot be construed as allowing Member States to give wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision". The Court in Svensson thought this would lead to legal uncertainty which would undermine the objective of the InfoSoc Directive. There may still be circumstances where live-streams might qualify for copyright protection, in which case communication to the public would be considered under Article 3(1) of the InfoSoc Directive. Article 3(1) is not limited to "on-demand" services like Article 3(2), but its definition of "communication to the public" cannot be expanded.
Overall, the judgment and the likely outcome appear sensible on the facts of the case, given that the original broadcaster imposed a paywall to prevent its broadcasts from being made available to the public for free. Broadcasters will therefore welcome the decision as it confirms that Member States can legislate to protect their rights in live-stream broadcasts, although this is not done under Article 3(2) of the InfoSoc Directive.
Previously published in IP Magazine May edition