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March 26, 2015
The Court of Justice of the European Union handed down its judgment in C More Entertainment AB v Linus Sandberg (Case C-279/13) today. This was the third case relating to linking in the trio also comprising Nils Svensson and Others v Retriever Sverige AB (Case C-466/12) and BestWater International GmbH v Michael Mebes and Stefan Potsch (Case C-348/13). The case concerns C More Entertainment, which, on its website, provided live retransmissions of ice hockey matches in the Swedish Ice Hockey League. Access to these links required payment of a fee. Mr Sandberg, on his website, published links to the ice hockey matches which enabled the paywall put in place by C More to be circumvented.
The Swedish Supreme Court referred five questions relating to linking to the CJEU. However, following Svensson, the CJEU asked if the referring court wished to withdraw the questions relating to whether linking constitutes communication to the public, which it did. This, of course, indicates that the CJEU considers its judgment in Svensson conclusive in this context. The only remaining question was therefore: “May the 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 [Directive 2001/29]?”
The Court held that transmissions of live broadcasts on the internet do not constitute making available, as they’re not accessed from a place and at a time individually chosen by the viewer. This is significant as broadcasters, unlike authors, only have a making available right under Directive 2001/29/EC, not a full communication to the public right. However, Member States may, if they wish, provide for more extensive protection, for example, a national right of communication to the public extending to broadcasters. The UK, for example, is a Member State that has done so in section 20 of the Copyright, Designs and Patents Act 1988.
While the judgment is, in particular, not encouraging news for the sports rights sector, which, more than other content sectors, relies on live transmissions of content, the CJEU’s clarification that Member States may provide for more extensive protection nevertheless provides some comfort, enabling Member States to ensure protection for the sports sector.
A link to the CJEU’s judgment is here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=163250&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=413275