On 26 March 2015, the Court of Justice of the European Union ("ECJ") handed down its preliminary ruling in case C-279/13, C More Entertainment v. Mr. Sandberg (the "Judgment"). In the Judgment, the ECJ held that Member States are free to give broader protection to broadcasters than is required under Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society (the "InfoSoc Directive").

The Judgment answers a request for a preliminary ruling by the Swedish Supreme Court in a case pitting C More Entertainment, a pay-television station, and Mr. Sandberg, a Swedish citizen who created links to live broadcasts of sport events, including a number of ice hockey matches broadcast by C More Entertainment. The links created by Mr. Sandberg circumvented the paywall put in place by C More Entertainment so that internet users could view the broadcasts for free.

Following the ECJ judgment in the Svensson case (See, VBB on Belgian Business Law, Volume 2014, No 2, p. 6, available at www.vbb.com), the Swedish Supreme Court withdrew all but one of the questions it had referred to the ECJ. As a result, the Judgment only answered the question of whether Member States may extend the exclusive rights beyond what is provided for in Article 3(2) of the InfoSoc Directive. This provision obliges Member States to adopt an exclusive "making available" right. Subsection (d) of Article 3.2 provides that broadcasting organisations will be granted exclusive rights to authorise making available to the public of fixations of their broadcasts.

The "making available to the public" right forms part of the broader concept of "communication to the public". While authors benefit from the exclusive right to communicate their work to the public, broadcasting organisations, which are protected by related rights instead of author's rights, are only granted the exclusive right to make the broadcast available to the public under the InfoSoc Directive.

The ECJ explained that making available to the public implies that two cumulative conditions must be satisfied: the members of the public may access the protected work from a (i) place and (ii) at a time individually chosen by them. It concluded that this was not the case of transmissions broadcast live on internet such as those at issue in the proceedings before the referring court.

Nevertheless, the ECJ held that Member States can extend the exclusive rights of broadcasting organisations to include protection against acts of communication to the public which do not fall within the narrower scope of a "making available to the public". In the Judgment, reference is made to Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property ("Directive 2006/115"). Article 8 of Directive 2006/115 states that Member States can give broadcasting organisations "the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee". The ECJ concluded that Member States can grant broadcasting organisations the exclusive right to authorise or prohibit acts of "communication to the public" of their transmissions provided such protection does not undermine that affected by copyright.

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