BREAKING: CJEU says that live broadcasts are not communication to the public within InfoSoc Directive but Member States can protect them

Did you think that following the decisions of the Court of Justice of the European Union (CJEU) in Svensson [Katposts here] and BestWater [here], the story with copyright and hyperlinks was over? Of course not.

As Tom explained in his post a couple of days ago, today the CJEU was expected to decide yet another case in this area: Case C-279/13 C More Entertainment, a reference for a preliminary ruling from seemingly hyperlinking-loving Member State, Sweden [if you missed what happened in this country following Svensson, you can read it all here]. 

The Högsta domstolen (Supreme Court of Sweden) referred the CJEU very similar - if not altogether identical - questions to those that the Svea hovrätt (Svea Court of Appeal) had posed in Svensson. 

As the IPKat reported a couple of months ago, following the very quick order in BestWater, the Högsta domstolen decided to retract all the questions referred but one, ie:

May the Member States give wider protection to the exclusive right of authors by enabling ‘communication to the public’ to cover a greater range of acts than provided for in Article 3(2) of the Information Society Directive?

A question of this kind is particularly dear to this Kat's mind and heart, since - even before Svensson was decided - she investigated this very issue (together with the question of how flexible national implementations of exceptions and limitations in Article 5 of the Information Society Directive) in this piece. 

At that time this Kat held the view, later confirmed by the CJEU in its decision in Svensson [yet with earlier hints in Luksan, here, and Football Dataco, here], that - also in light of the doctrine of EU pre-emption (which is somehow codified in Article 2(1-2) of the Treaty on the Functioning of the European Union and denotes the actual degree to which national initiatives are to be set aside following EU legislative intervention in a certain area) - Member States may not alter the  the scope of harmonised exclusive rights.

In Svensson the CJEU indeed held that: 

Article 3(1) of [the Information Society] Directive ... must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

In light of all this, and going back to C More Entertainment - could have the CJEU stated there that Member may actually enable 'communication to the public' to cover a greater range of acts than provided for in Article 3(1)?

Possibly not, and this is indeed what the CJEU apparently said this morning in another decision [not yet available on the website of the Court] achieved without the need for the Opinion of an Advocate General [Eleanor Sharpston in this case] first [on the seemingly fading role of Advocates General in copyright cases, see here].

Cuter forms of linking
(and licking) than those
addressed by the CJEU

According to the press release [not yet available either],

"[The Information Society] [D]irective provides that broadcasting organizations may prohibit the provision to the public fixations of their broadcasts, so that everyone can access them from a place and at a time chosen individually.

In the fall of 2007, the C More Entertainment pay-TV channel transmitted on its website several hockey games on ice, which interested persons could access by paying the sum of 89 kronor (SEK) (approximately 9.70 euros) per game. M. Linus Sandberg has created on its website links to bypass the toll system set up by C More Entertainment. Internet users were able and free access to the transmissions of two live hockey games before C More Entertainment will set up a technical device preventing such access. C More Entertainment filed a lawsuit before the Swedish courts to obtain compensation.

Hearing the case in the end, the Högsta domstolen (Swedish Supreme Court) ask[ed] the Court of Justice whether broadcasters have the right to prohibit a sports event broadcast live on the internet for payment is transmitted to the rest the public.

In its judgment today, the Court recall[ed] that the exclusive right granted to broadcasters by the directive only applies if anyone has access to the transmission at a time individually chosen by them. But this is not the case of live broadcasts on the Internet.

However, the Court note[d] that, with regard to the nature and extent of the protection which Member States may recognize broadcasting organizations, the Directive does not harmonize any differences between national laws, so it does not preclude more protective provisions. Moreover, the Court notes that the Directive is subordinate to another EU directive [the one on rental and lending rights] which explicitly recognizes that Member States may provide more protective provisions regarding the public communication of programs conducted by broadcasters. It follows that broadcasters may prohibit acts of communication to the public of their broadcasts (in the clear provided that such protection does not infringe the copyright).

In summary, the Court consider[ed] that a broadcaster may prohibit a sports event broadcast live on the internet for for payment is transmitted to the rest of the public."

As soon as the decision becomes available, a more detailed analysis will be provided, so: stay tuned!

*** UPDATE at 10:42 am GMT: The decision is now available here ***