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Live streaming of sporting fixtures over the internet and copyright

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13/05/2015

Article 3(1) of the Copyright Directive [1] provides for a right of communication to the public in respect of literary, artistic, domestic and musical works. Under Article 3(2) Member States are obliged to provide in their national laws for a “making available on demand” right.

Article 3(2)(d) provides a right of communication to broadcasters in respect of their broadcasts. It states that Member States must provide for the exclusive right for broadcasting organisations to authorise or prohibit the making available of “fixations of their broadcasts” in a way that allows the public to access them at a place and time of their choosing.

In C More Entertainment v Sandberg [2] the claimant was a Swedish pay-TV company which broadcasts ice hockey matches on its website, upon payment of a fee. The defendant created links on his own website which enabled the paywall put in place by the claimant to be circumvented, effectively enabling internet users to access the live broadcasts for free.

The issue before the Court, referred by the Swedish Supreme Court, was whether Article 3(2) of the Copyright Directive must be interpreted as precluding national legislation extending the protection afforded to the broadcasters by Article 3(2)(d) to acts of communication to the public, such as live broadcasts of sporting fixtures on the internet.

The Court of Justice ruled that the concept of “making available to the public” forms part of the wider “communication to the public” and that the concept of “making available to the public” is intended to refer to interactive on-demand transmission – not to live broadcasts. In the case of live broadcasts, there is no choice as to time. Either the user watches it live or not. Consequently “live streaming” does not fall within the definition of “making available to the public” within the meaning of Article 3(2).

The Court explained that the Copyright Directive was only a partial harmonisation measure and it was open to Member States to afford greater protection to rights holders, in this case broadcasters, than was set out in the Directive, provided this did not undermine copyright.

In essence therefore the Court ruled that Member States can legislate to extend broadcasters’ rights of communication to the public under the Copyright Directive to cover acts such as linking to live broadcasts, provided that such legislation does not undermine the protection of copyright under EU law.

Broadcasters will welcome the decision as it allows Member States to bring the protection of paywall-protected live streaming within the scope of national copyright legislation, so that deliberate circumvention of paywalls can be infringement.

This case follows the Court’s 2013 ruling in ITV Broadcasting Ltd and others v TV Catchup Ltd [3] that the distribution by intermediaries of copyright-protected works by live streaming over the Internet was a communication to the public within the meaning of Article 3(1) of the Directive and, as such, a potentially infringing act.

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[1] Directive 2001/29
[2] Case C-279/13
[3] Case C-607/11

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