CJEU clarifies that live broadcasts on the Internet are not 'communication to the public'; nonetheless, these can be protected on a national level

On 26 March 2015, the EU Court of Justice (CJEU) published its ruling in Case C 279/13, C More Entertainment, a reference for a preliminary ruling from the Supreme Court of Sweden, asking whether EU Member States may 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(1) of the Information Society Directive 2001/29/EC.

In the present case, C More Entertainment AB, the CJEU recalled 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. However, this is not the case of live broadcasts on the Internet.
 
On the other hand, the CJEU noted that, with regard to the nature and extent of the protection which Member States may recognise broadcasting organisations, the Directive does not harmonise any differences between national laws, so it does not preclude more protective provisions: 
 
“Article 3(2) of Directive 2001/29 must be interpreted as not affecting the option open to the Member States, set out in Article 8(3) of Directive 2006/115, read in conjunction with recital 16 to that directive 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”. Consequently, Article 3(2) of Directive 2001/29/EC does not preclude national legislation “(…) extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright”.
 
The complete decision of the CJEU in Case C 279/13, C More Entertainment AB, is available here