(C) More Entertainment for Broadcasters: The European Court of Justice on Linking to Live Streams of Sport Events

The request for a preliminary ruling came from the Supreme Court of Sweden. The online broadcaster C More Entertainment challenged the legality of Mr. Sandberg’s website hosting links enabling users to circumvent a paywall to watch its live streams of hockey matches. 

 

Finally, the Swedish Court decided to drop a number of questions, initially referred to the ECJ, concerning whether placing clickable links on a website may be classified as an act of communication to the public. The ECJ already answered those questions in Svensson, noting that links communicate works to the public, but they are not infringing unless they make the work available to a new public. Therefore, links to authorized works freely available online do not infringe the right of communication to the public. In contrast, a link enabling users to circumvent a paywall would communicate the work to a new public and would be infringing.

 

In this case, however, C More Entertainment does not own a copyright in the underlying sport event, which, as we have discussed here, does not reach the level of originality required for copyright protection. Instead, C More Entertainment enjoys a related right in the broadcasting of the sport event.

 

According to Article 3(2)(d) of Directive 2001/29, Member States must provide broadcasting organisations with  “the exclusive right 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.” According to the ECJ, this "right of making available to the public" forms part of the wider "right of communication to the public," which Article 3(1) grants to authors. Referring to the explanatory memorandum to the Commission Proposal to Directive 2001/29, the ECJ confirmed that “making available to the public” is intended to refer to ‘interactive on-demand transmissions’ characterized by the fact that members of the public may access them from a place and at a time individually chosen by them.

 

As the ECJ noted, “that is not the case of transmissions broadcast live on internet.” C More Entertainment’s live streams of hockey matches would fall out of the scope of the rights granted by EU law to broadcasting organizations.

 

Against this factual and legal background, the Swedish Supreme Court maintained only one question for the ECJ:

In practice, should Article 3(2) of Directive 2001/29 be interpreted as precluding national legislation from extending the exclusive right of the broadcasting organisations to acts of communication to the public encompassing broadcasts of sporting fixtures made live on internet? Does EU law preclude Member States to extend the exclusive rights of the broadcasters to those acts which could be classified as "acts of communication to the public" but which do not constitute "acts of making available to the public the fixations of their broadcasts in such a way that members of the public may access them from a place and at a time individually chosen by them"?

 

The ECJ answered to this question in the negative and held that “Directive 2006/115 [on Rental Right and Lending Right and on Certain Rights related to Copyright in the Field of Intellectual Property] 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 than those which must be instituted in accordance with Article 8(3) of that directive.” Therefore, the ECJ concluded, Article 3(2) of Directive 2001/29 must be interpreted as not precluding national legislation from extending the exclusive broadcasting organisations' right of making available to the public referred to in Article 3(2)(d) to acts of communication to the public including live internet streams of sport events.