Hyperlinking to paywall protected live broadcasts

In C More Entertainment AB v Linus Sandberg: C‑279/13 the Court of Justice of the European Union (CJEU) has clarified that broadcasters may use paywalls to protect their live broadcasts to prevent unauthorised linking by third parties.

What was the background to this claim?

C More Entertainment is a pay TV station. For payment of a fee, C More subscribers could view ice hockey matches broadcast live on C More’s internet site. Mr Sandberg placed clickable links on a website which circumvented C More’s paywall allowing internet users to gain access to the live broadcast, without having to pay C More’s fee.

Art 3 of Directive 2001/29/EC (the InfoSoc Directive) deals with the right of communication to the public (CTTP). CTTP is the right for authors or other persons to authorise or prohibit any CTTP of their works, by wire or wireless means, including the making available of their works in such a way that members of the public may access them from a place and at a time ‘individually chosen by them’. Under art 3(2) this includes, for broadcasting organisations, broadcasts (of sporting fixtures) made live on the internet. Geared towards on-demand services, under the InfoSoc Directive, art 3 (2), CTTP only applies if the public have access to the broadcast at both a place and a time individually chosen by them. Therefore live broadcasts on the internet would not, on the face of it, be covered by this right.

The Swedish Supreme Court referred five questions to the CJEU for a preliminary ruling. The main thrust of the reference was:

whether the insertion of hyperlinks on internet sites constituted an act of communication to the public (CTTP), and
whether a member state may give wider protection to the exclusive right of authors by enabling CTTP to cover a greater range of acts than provided for in of the InfoSoc Directive, art 3 (1) (note in the preliminary reference ruling art 3(2), was referred to in the place of art 3 (1))

When the Svensson case (Svensson and others v Retriever Scerige AB: C-466/12 [2014] All ER (D) 123 (Feb)) which dealt with hyperlinking (in some respects) was decided in 2014, the CJEU wrote to the Swedish Supreme Court asking it if it wanted to proceed with the reference. In October 2014, it decided to proceed only with the question contained in 2. above.

What did the CJEU decide?

The CJEU reasoned that:

the objective of the InfoSoc Directive (and art 3(2)) is not to remove or prevent differences between national legislations which do not adversely affect the functioning of the internal market
recital 16 in the preamble to Directive 2006/115/EC on rental and lending rights (which replaced Directive 92/100/EEC), provides that member states should be able to provide more far-reaching protection for owners of copyright than that required by the provisions laid down in Directive 2006/115/EC, in respect of broadcasting and communication to the public
since Directive 2006/115/EC, art 8 states in particular, that member states are to provide for broadcasting organisations to have the right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee, member states have an (implied) option of being able to provide for more protective provisions

Following this reasoning the CJEU ruled that the InfoSoc Directive, art 3(2) must be interpreted as not precluding national legislation that extends the CTTP right of broadcasting companies to cover live broadcasts, provided that such extended protection does not undermine the protection of copyright.

What should lawyers take from this decision?

Svensson, a reminder

The impact of Svensson was to confirm that hyperlinks that redirect Internet users to copyright protected works that have been made available on a ‘freely accessible basis’, may be placed on third party websites without the permission of the copyright owner. On the other hand, providing a hyperlink to a copyright protected work is a CTTP that potentially infringes copyright if the hyperlink directs a ‘new public’ to the work (ie a public that was not taken into account by the copyright owner at the time the initial communication was permitted).

Maybe we'll C More paywalls...

This was a good result for broadcasters.

The CJEU’s decision in C more wasn’t much of a surprise since the broadcast was not offered on a freely accessible basis, but C More has confirmed that there is no free rein in terms of linking to all content on the internet. This case has clarified that in order effectively to limit the exploitation of copyright protected works by means of hyperlinking, right holders should restrict access to the works using paywalls and other technical measures.

...but

The C More case did not enlighten us further on burning questions such as the efficacy of other types of restrictions such as restrictions included in the licence terms and conditions of a ‘freely accessible’ targeted website. However the CJEU appears to have opened the doors to allow for more far reaching protection for copyright owners in respect of their right of CTTP.

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