The matter at hand
C More Entertainment is a Swedish pay-TV station which, in autumn 2007, broadcast a number of ice hockey matches to which persons interested could have paid access.
Sandberg has a website on which he had created links that circumvented the paywall put in place by C More Entertainment. Via those links internet users could access the live broadcasts of two matches for free. Sandberg was subsequently prosecuted for infringing copyright and/or related (neighbouring) rights. It was argued that Sandberg was making the matches available to the public.
The right conferred to broadcasting organisations, such as C More Entertainment, by virtue of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society relates specifically to the right of ‘making available to the public’ which forms part of the wider right of ‘communication to the public’. For the purposes of Article 3 of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, ‘making available to the public’ is intended to refer to ‘interactive on-demand transmissions’ characterised by the fact that members of the public may access them from a place and at a time individually chosen by them. These requirements are not met in case of transmissions broadcast live on internet, such as those at issue in the main proceedings.
The proceedings went all the way to the Swedish Supreme Court which noted that the relevant national legislation provided for wider related rights than the provisions set out in Article 3(2) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. The Supreme Court therefore referred the question to the ECJ whether Member States may give wider protection to the exclusive right of authors – and broadcasting organisations in particular – by enabling ‘communication to the public’ to cover a greater range of acts than provided for in Article 3(2) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. In essence the Supreme Court was asking whether a Member State can also prohibit the communication to the public of live broadcasts, which does not simultaneously constitute an act of making such broadcasts available to public.
The judgment of the ECJ
The ECJ sets out to investigate whether a Member State can grant broadcasting organisations rights as regards acts which can be classified as communications to the public but which do not constitute acts of making available to the public.
The ECJ considers that ''neither Article 3(2) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society nor any other provision thereof states that the EU legislator sought to harmonise and, in consequence, prevent or remove any differences between the national legislations as regards the extent of the protection which the Member States may grant to the holders of the rights referred to in Article 3(2)(d) with regard to certain acts, which are not expressly referred to in that provision'' (paragraph 31).
Furthermore, it is apparent from recital 16 in the preamble to the Rental Right and Lending Right Directive, which is important for the interpretation of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, ''that the Member States should be able to provide for more far-reaching protection for owners of rights related to copyright than that required by the provisions laid down in the Rental Right and Lending Right Directive in respect of broadcasting and communication to the public'' (paragraph 33).
It goes on to consider that the Rental Right and Lending Right Directive ''gives the Member States the option of providing for more protective provisions with regard to the broadcasting and communication to the public of transmissions made by broadcasting organisations than those which must be instituted in accordance with the provisions of that Directive. Such an option implies that the Member States may grant broadcasting organisations an exclusive right to authorise or prohibit acts of communication to the public of their transmissions and in particular transmissions to which members of the public may obtain access from a place individually chosen by them, it still being understood that, as provided for in Article 12 of the Rental Right and Lending Right Directive, such a right must not affect the protection of copyright in any way'' (paragraph 35).
The ECJ then concludes that it ''follows that Article 3(2) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not affecting the option open to the Member States to grant broadcasting organisations the exclusive right to authorise or prohibit acts of communication to the public of their transmissions provided that such protection does not undermine that of copyright'' (paragraph 36).