On 26 March 2015, the Court of Justice of the EU rendered another interesting judgment in relation to hyperlinks, following its Svensson (C-466/12) and Bestwater (C-348/13) judgments.
In this case (C-279/13), a dispute had arisen between C More Entertainment and Mr Sandberg. C More Entertainment is a Swedish pay-TV station which broadcasts live ice hockey matches on its website, for payment of a fee. Mr Sandberg created links on his website that enabled the paywall put in place by C More Entertainment to be circumvented.
The question for a preliminary ruling was whether Article 3 (2) (d) of Copyright Directive 2001/29 must be interpreted as precluding national legislation extending the exclusive right of broadcasting organizations referred to in Article 3 (2) (d) to acts of communication to the public, such as live broadcasts of sporting fixtures on the internet.
Article 3 (2) (d) of Copyright Directive 2001/29 states that Member States must provide for the exclusive right for broadcasting organizations to authorize or prohibit the making available of fixations of their broadcasts to the public, in a way that allows the public to choose where and when to access them.
In its ruling, the CJEU considered that the concept of making available to the public forms part of the wider concept of communication to the public; however, this concept is intended to refer only to "interactive on-demand transmissions", whereby the public may access them from a place and at a time individually chosen by them. That does not apply to transmissions broadcast live on the internet, as in this case.
The question was whether Article 3 (2) of Copyright Directive 2001/29 nevertheless grants broadcasting organizations an exclusive right as regards live broadcasts of sporting fixtures on the internet, which can be classified as acts of communication to the public, but not as acts of making available to the public in a way that allows the public to choose where and when to access them.
The CJEU considered that Member States are allowed to provide for more protective provisions with regard to broadcasting and communication to the public of transmissions by broadcasting organizations. Accordingly, the CJEU asserted that Article 3 (2) (d) must be interpreted as not precluding national legislation extending the exclusive right of broadcasting organizations referred to in Article 3 (2) (d) to acts of communication to the public, such as live broadcasts of sporting fixtures on the internet, provided that such an extension does not undermine the protection of copyright.
In other words, Member States may grant broadcasters the right to prohibit acts of communication to the public of their broadcasts, provided that such protection does not affect the protection of copyright.
