IP & IT Bytes: Paywall-circumventing hyperlinks: communications to the public

08 May 2015

Audrey Horton

The European Court of Justice (ECJ) has ruled that EU member states can legislate to categorise the provision of paywall-circumventing hyperlinks that enable free access to a broadcaster’s content as an unlawful communication to the public.

Background

Member states must provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including making their works available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them (Article 3(1), Copyright Directive (2001/29/EC)) (Article 3(1)).

Article 3(2) of the Copyright Directive provides other persons with the exclusive right to make their works available to the public by wire or wireless means (Article 3(2)). This includes the right for broadcasting organisations to make their broadcasts available to the public by wire or over the air, for example, by cable or satellite (Article 3(2)(d), Copyright Directive) (Article 3(2)(d)).

Member states may give broadcasters the exclusive right not only to rebroadcast their broadcasts by wireless means, but also to communicate them to the public in places accessible to the public on payment of an entrance fee (Article 8(3), Rental Directive  (2006/115)) (Article 8(3)). However, member states may provide for more far-reaching protection for rights owners than this (Recital 16, Rental Directive) (Recital 16).

The Rental Directive provisions on the protection of copyright-related rights leave intact the protection of copyright (Article 12, Rental Directive).

Website owners are now free to link to copyright material on third-party websites if the material is freely available and accessible on those other websites (Svensson and others v Retriever Sverige AB, see News brief "Linking and framing copyright material: guidance at last").

Facts

A pay-TV channel, C, streamed ice hockey games live through its website. S posted hyperlinks on his own website that circumvented C’s paywall and enabled those who clicked on them to watch the ice hockey games for free.

C sued S for copyright infringement in the Swedish courts.

The Swedish Supreme Court referred several questions to the ECJ for a preliminary ruling. Following Svensson, all questions were withdrawn except: whether member states could give wider protection to the exclusive right of authors by extending "communication to the public" to cover a greater range of acts than provided for under Article 3(2).

Decision

The ECJ held that member states can legislate to extend the exclusive right of broadcasting organisations referred to in Article 3(2)(d) to acts of communication to the public such as broadcasts of sporting fixtures sent out live on the internet, provided that this does not undermine the protection of copyright in that member state.

Communication to the public in Article 3(1) included the concept of making available to the public and referred to interactive on-demand transmissions. This would not include live streaming, as this was not provided on demand.

The Copyright Directive harmonised national laws on copyright and related rights only partly. Although it harmonised the author’s right of communication to the public and created legal certainty as to the lawfulness of acts of on-demand transmission, it did not harmonise acts that fell outside the scope of its provisions.

Under Recital 16, member states may give wider protection in respect of the broadcasting and communication to the public of transmissions than for the broadcasters’ rights given under the Rental Directive. This includes the exclusive right of broadcasters to give access to broadcasts in return for a fee under Article 8(3)).

It followed that Article 3(2) did not affect the option open to member states, set out in Article 8(3), to widen broadcasters’ exclusive right of communication to the public under Article 3(2)(d), if this did not interfere with copyright protection.

Comment

Unlike Svensson here the ice hockey games were not freely available, but were instead protected by a paywall. This decision confirms that there is nothing to stop member states legislating to bring the provision of hyperlinks to paywall-protected live streaming within the scope of national legislation implementing Article 3(2)(d).

This decision confirms that broadcasters may prohibit acts of communication to the public in the form of broadcasts of sporting fixtures made live on the internet for payment. It also indicates that member states can widen the scope of the right of communication to the public to acts other than those listed in Article 3(2).

In the UK, the implementation of Article 3 similarly extends beyond the acts set out in Article 3(2). For example, section 20 of the Copyright, Designs and Patents Act 1988 (CDPA) provides that communication to the public is an infringement of a broadcast, and under section 6 (1A) of the CDPA, "broadcast" includes transmissions taking place simultaneously on the internet or concurrent transmissions of a live event.

Questions that were withdrawn in this case remain unanswered and a further reference to the ECJ from the Dutch Supreme Court is currently pending.

Case: C More Entertainment AB v Linus Sandberg, C-279/13.

First published in the April 2015 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200

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