On 26 March 2015, the Court of Justice of the European Union (CJEU) rendered a most interesting and instructive verdict on the matter of live streaming of sports events on the Internet (C More Entertainment vs. Sandberg, Case Ref.: C‑279/13). The 9th Chamber ruled that Member States may grant statutory broadcasting rights that go beyond the definition of the “making available to the public” as set out in Article 3 (2) of the InfoSoc Directive (2001/29) provided that such an extension does not undermine the protection of copyright. This ruling is particularly noteworthy because the CJEU in its well-known Svensson decision of February 2014 (Case Ref.: C‑466/12) emphasized that the Member States may not expand the definition of the term “communication to the public” beyond what is set out in Article 3 (1) of the InfoSoc Directive 2001/29.
The case was referred to the CJEU by the Swedish Högsta Domstol (Supreme Court). A Swedish individual (Mr Sandberg) had embedded a link on his website enabling the paywall put in place by an Internet broadcaster to be circumvented. Via this link, internet users could thus access the live broadcasts of two ice hockey matches for free. The broadcaster sued the individual and prevailed in first instance. The Swedish Hovrätt (Court of Appeal) held that no part of the commentators’, cameramen’s or picture producers’ work on the broadcasts of the ice hockey matches, taken on its own merits or some or all of those parts taken together, reached the level of originality required for copyright protection. However, the access to the live streams provided by Mr Sandberg was deemed to have violated the broadcasting rights of the broadcaster.
Upon further appeal, the Swedish Supreme Court stayed the proceedings and referred, in total, five questions to the CJEU relating to various aspects of live streaming. In the light of the Svensson decision of 2014, the Swedish court withdrew the first of its four questions but maintained the fifth. The Swedish court wanted to achieve clarity as to
“whether Article 3 (2) of Directive 2001/29 must be interpreted as precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3 (2) (d) of Directive 2001/29 as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute.”
The CJEU’s first clarified the relationship between Articles 3 (1) and 3 (2) of the InfoSoc Directive. It pointed out that the concept of “making available to the public” forms part of the wider “communication to the public“. Further, the judges emphasize that “making available to the public” is intended to refer to interactive on-demand transmissions. Those are characterised by the fact that members of the public may access them from a place and at a time individually chosen by them. With live broadcasts, however, members of the public have no choice as to time; they either watch it live or they will miss it. In consequence, the CJEU said that live streaming as such does not fall within the definition of “making available to the public” under Article 3 (2) of the InfoSoc Directive. Therefore, that provision cannot be held against a national law granting the broadcaster rights exceeding those furnished by Article 3 (2) (d) of InfoSoc Directive.
The judges then turn to the question to which extent the Member States are free to define a broadcaster’s right that involves the communication to the public beyond the scope of Article 3 (2) (d) of InfoSoc Directive. In this context, the CJEU emphasizes the fact that the European legislator has chosen to refrain from full harmonisation of copyright law. The InfoSoc Directive is about the levelling of obstacles that adversely affect the functioning of the internal market. In consequence, there is some room for discretion on national level.
Even on community level, we find indications that the view must go beyond Article 3 (2) of the InfoSoc Directive. The CJEU particularly points to Article 8 (3) of the 2006 Directive on rental and lending rights and certain rights related to copyright (2006/115). The 2006 Directive obliges the Member States to provide broadcasting organisations with the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee. According to this Directive, the Member States can even establish extended protection provided, however, that such broadcasting right does not affect the protection of copyright in any way.
The bottom line of the ruling is therefore that, whereas the term “communication to the public” may not be expanded beyond Article 3 (1) of the InfoSoc Directive, Member States may delineate broadcasting rights irrespectively of this definition as long as they respect the scope of copyright protection called for by Union law. In this context, they are guided but not limited by the stipulations set out in the 2006 Directive.
The current ruling does not answer the question whether providing unauthorised access to live streams forms a violation of copyright because the ice hockey broadcast at issue did not reach the level of originality required for copyright protection. Even if the live streams in this case had been copyright works they would still have lacked the characteristics of an on-demand service, for the purposes of Article 3 (2) of the Infosoc Directive. Nevertheless, we should note that the scope of the term “communication to the public“, under Article 3 (1) of InfoSoc Directive, is more comprehensive and is expressly not limited to on-demand scenarios. Thus, the Article 3 (1) right could come into play when copyright works are streamed live, for example an opera or a play.
Overall, broadcast organisations have benefitted from this ruling as the CJEU has strengthened their position recognisably. Deliberate circumvention of rightful paywalls finds no appreciation on EU level. The CJEU reached this conclusion by way of accepting and approving the national scope of a broadcasting right going beyond Article 3 (2) of the InfoSoc Directive. This in turn, will surely find the Member States’ appreciation.