EU Court rules on hyperlinks to live broadcasts on the Internet

By Gabriel M. Lentner

Following the Svensson (C-466/12) and BestWater (C-348/13) cases, the Court of Justice of the European Union (“CJEU”) delivered its judgment on 26 March 2015 in the case of C More Entertainment AB v. Linus Sandberg (Case C-279/13). As in previous preliminary rulings, the CJEU had to deal with questions concerning the right of communication to the public in the context of websites providing hyperlinks to content. While the initial request by the Swedish Supreme Court referred five questions to the CJEU, it viewed four as having already been clarified by the CJEU in its previous judgment in Svensson, thus leaving only one question to be addressed by the Court.

The case at hand concerned a Swedish pay-TV station, C More Entertainment, which broadcasts live on its website ice hockey matches behind a pay wall. The defendant created links on his website enabling this pay wall to be circumvented, giving free access to Internet users to these live broadcasts. In Svensson the CJEU has already held that creating hyperlinks to a copyright work made available on another, freely accessible website does not constitute an ‘act of communication to the public’ within the meaning of Article 3(1) of the 2001 Copyright Directive. In BestWater, the Court clarified that the embedding or framing of a work which is freely available on a publicly accessible website is equally not infringing, unless it is directed at a different audience than originally intended or is communicated by using different technical means.

Following the guidance provided for in Svensson, the Swedish Supreme Court held that the hyperlinking to content behind a paywall did infringe the right of communication to the public, since the links gave access to the content to an audience who were not intended to receive it.

It was not clear, however, whether Article 3(2)(d) of the Copyright Directive 2001/29 precluded national legislation from extending the exclusive right of broadcasting organizations to live broadcasts of sporting fixtures on the Internet. The issue arose because the concept of ‘communication to the public’ refers only to transmissions which members of the public may access at a place and at a time individually chosen by them. Accordingly, this does not apply to live broadcasts on the Internet. In that regard, the CJEU held that Member States are allowed to provide for more protective provisions relating to broadcasting and communication to the public of transmissions by broadcasting organizations. According to the Court, Article 3(2)(d) of the Copyright Directive must be interpreted as not precluding national legislation extending the exclusive right of broadcasting organizations referred to in that provision 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.

As a result, the rights of broadcasting organizations as regards live broadcasts online may vary within the EU, with some Member States offering broader protection such as Sweden or the UK.