Hyperlinking to paywall protected live broadcasts

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:

  1. whether the insertion of hyperlinks on internet sites constituted an act of communication to the public (CTTP), and
  2. 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:

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