CJEU: judgement about direct broadcast of a sporting fixture on an internet site

n its judgement as of 26.03.2015 (C-279/13) the CJEU decided about a request for a preliminary ruling by the Swedish Supreme Court (Högsta domstol) concerning the interpretation of Art. 3 II of the InfoSoc-Directive 2011/29.

Plaintiff in the underlying case is C More Entertainment, a pay-tv station, which also broadcasts live on its internet site, for payment of a fee, among others ice hockey matches. The defendant Linus Sandberg created links enabling to circumvent the paywall put in place by the plaintiff to watch the live broadcasts of the ice hockey matches. The Swedish Supreme Court was of the opinion that neither from the wording of the Directive nor from CJEU case-law the insertion of a “hyperlink” constitutes an act of communication to the public as per Art. 3 II of the Directive. However, the Court pointed out that the relevant Swedish national law provides for wider related rights than those set out in the Directive by not restricting the protection of such rights to acts of making works available “on demand”. Therefore the Högsta domostol asked the CJEU if Member States could give wider protection to the exclusive rights of authors by enabling “communication to the public” to cover a greater range of acts than provided in the Directive.

The CJEU answered the question with “yes”. The Court argues that following the recitals of the Directive “making available to the public” for the purposes of Article 3 of the directive, is intended to refer to “interactive on-demand transmissions”. Such transmissions are characterized by the fact that members of the public may access them from a place and at time individually chosen by them. Direct broadcasts are lacking this characteristic. However, the Court also points out that member states may extend the exclusive right of the broadcasting organisations as regards acts of communications to the public as laid out in the Directive.

In summary it can be said that direct broadcasts are not protected under the InfoSoc-Directive. That applies whether a sports event or other content is concerned. However, it is up to the member states to provide such protection on national level. In Germany, the question of whether live broadcasts over the internet infringe the broadcasting right or the right to cable transmission, therefore remains open. As long as the legislator does not organise the right of cable transmission in a technologically neutral manner, the legal uncertainty in legal practice will continue.