Readers will remember that the CJEU ruled out that live streaming of broadcasts could fall within the scope of Article 3(2) of the InfoSoc Directive, on grounds that [para 25] "in order to be classified as an act of 'making available to the public' within Article 3(2) of that directive that ... an act must meet, cumulatively, both conditions set out in that provision, namely that members of the public may access the protected work from a place and at a time individually chosen by them."
But what happened to C More once the case got back to the Swedish Supreme Court? Katfriend Pär Öhman (Bildombudsmannen AB) explains the content of last year's decision.
Here's what Pär writes:
In 2007, pay TV-station C More sold live pay-per-views to ice hockey games from Elitserien (the highest division in the Swedish ice hockey system, now called SwedishHockey League). C More produced and owned the rights to the broadcasts.
|Changing the rules of the game|
Communication to the public
By reference to Svensson [Katposts here], the Supreme Court noted that C More had restricted access to the broadcasts through a paywall. The links provided by the defendant made it possible to circumvent C More’s restriction. Therefore, the defendant’s links constituted an act of communication to the public.
Protection as literary or artistic works
C More claimed that the result of the work of commentators, image producer and cameramen in the context the broadcasts (each individual performance as well as the broadcast as a whole) were protected as works. C More also stressed the presence of sound, graphic and vignette in the broadcast.
After looking at the broadcasts, however, the Supreme Court (with a 3-2 vote) concluded that the broadcasts were not protected as works. The reason was that the broadcast essentially was ruled by the events of the games and the result was not considered to be an intellectual creation.
In the Swedish Act on Copyright in Literary and Artistic Works (SFS 1960:729) copyright protection includes, inter alia, the exclusive right to control the work by making it available to the public. A work is made available to the public when it is communication to the public. This right include communication by (direct) streaming as well as on demand. The same applies to video and sound recordings, ie in this case the replays.
The exclusive right for radio and television companies to exploit a radio or television broadcast were mentioned by the Supreme Court as part of the legal context. However, the provision was not applied: it was only noted that it did not give the radio and television companies the same general right of making available to the public as for works and video and sound recordings. It only applies when the public may access them from a place and at a time individually chosen by them.
The Supreme Court (the majority and minority) gave the answer that for a sport broadcast, or parts of it, to be protected as a work, it is required that the content goes beyond what is given by the prerequisite of the game or competition and that it is a result of one's own intellectual creation. What is troublesome is that the majority and minority of the court came to different conclusions regarding the same broadcasts. This points to the fact that the assessment is subjective and therefore uncertain. However, it is noticeable that sports broadcasts can be protected (and that the replays shown during the direct broadcasts are protected).
In this case, it did not matter that a technically knowledgeable person could access the URL of the streaming server. The fact that the restriction did not constitute a technical hinder did not change the assessment. Instead, the CJEU had in Svensson given the answer that the circumvention constituted an infringement. Regardless, C More did change their restrictions to a more adequate.
Even though the C More’s broadcasts were not considered to be protected as works, the case show that broadcasts, even sports broadcasts, are nonetheless subject to protection."