ECJ: Live Broadcasts Not Amount To Making Available; National Laws May Give Broader Protection To Broadcasters

On 26 March 2015, the Court of Justice of the European Union ("ECJ") handed down its preliminary ruling in case C-279/13, C More Entertainment v. Mr. Sandberg (the "Judgment"). In the Judgment, the ECJ held that Member States are free to give broader protection to broadcasters than is required under Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society (the "InfoSoc Directive").

The Judgment answers a request for a preliminary ruling by the Swedish Supreme Court in a case pitting C More Entertainment, a pay-television station, and Mr. Sandberg, a Swedish citizen who created links to live broadcasts of sport events, including a number of ice hockey matches broadcast by C More Entertainment. The links created by Mr. Sandberg circumvented the paywall put in place by C More Entertainment so that internet users could view the broadcasts for free.

Following the ECJ judgment in the Svensson case (See, VBB on Belgian Business Law, Volume 2014, No 2, p. 6, available at www.vbb.com), the Swedish Supreme Court withdrew all but one of the questions it had referred to the ECJ. As a result, the Judgment only answered the question of whether Member States may extend the exclusive rights beyond what is provided for in Article 3(2) of the InfoSoc Directive. This provision obliges Member States to adopt an exclusive "making available" right. Subsection (d) of Article 3.2 provides that broadcasting organisations will be granted exclusive rights to authorise making available to the public of fixations of their broadcasts.

The "making available to the public" right forms part of the broader concept of "communication to the public". While authors benefit from the exclusive right to communicate their work to the public, broadcasting organisations, which are protected by related rights instead of author's rights, are only granted the exclusive right to make the broadcast available to the public under the InfoSoc Directive.

The ECJ explained that making available to the public implies that two cumulative conditions...