European Court decides about linking to infringing materials (or does it?)

Back in time.

It has been often remarked in these pages that we seem to be going back in time when it comes to copyright case law. In particular, the fact that the Court of Justice of the European Union continues to decide cases about linking seems to me to be a baffling return to the 1990s.

The CJEU has answered yet another linking question referred to it by Swedish courts in C More Entertainment v Sandberg (C‑279/13). C More Entertainment is a TV company that also sells streaming of sports events. In 2007 they broadcast a series of ice hockey matches, and sold streaming of the events by payment. Linus Sandberg has a website where he published links to other websites where users could look at the matches for free. Before the matches, C More contacted Mr Sandberg attempting to get him to remove the links, and he did not comply. After the matches, they sent another letter stating that he was infringing their copyright. C More then placed a technical protection measure to their broadcasts, and made a court complaint against Mr Sandberg for copyright infringement.

On November 2010 Mr Sandberg was found guilty of copyright infringement, and was fined and ordered to pay damages to the C More. The decision was appealed by both Sandberg and C More, and in June 2011 the appeals court produced a bizarre decision in which they stated that C More’s recording of the sport event was not an act covered by copyright because it did not have enough originality, but they declared that they were covered by related rights on the broadcast, and therefore awarded higher fines but lowered the damages slightly.

Unsurprisingly, C More appealed to have the broadcast declared a work under copyright. However, the Swedish Supreme Court ruled initially that the wording of the Directive does not show that the placing of a hyperlink makes up an act of communication to the public; but they also found that Swedish law  gives owners a much wider related right to that present in the European Directive, as “the protection conferred by Swedish law is not restricted to acts of making works available ‘on demand’.”

Therefore, the Supreme Court decided to defer the judgement after referring a number of questions to the CJEU, which were reduced to one after the Svensson ruling (our take on that case here). The question then was: ‘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 [Directive 2001/29]?’

This question is not at all about linking to infringing material, and as we already got a decision about that in Svensson. To refresh everyone’s memory, Svensson dealt wit whether the first posting of content by a copyright owner allowed others to link to it, and the answer is yes. The decision was then complemented in BestWater (C-348/13), which decided the same thing about embedding a video.

The question there is actually rather narrow. The right of communicating to the public, contained in the Art 3 of the Directive 2001/29, reads:

“1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: […]
(d)      for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.”

In other words, the Swedish court was asking if it can interpret Art 3 in a much wider way, as they Swedish law gives more protection for broadcasts than the Directive.

In their decision, the CJEU relies heavily on the Rental and Lending Rights Directive (2006/115/EC), Recital 16 of which reads:

“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 this Directive in respect of broadcasting and communication to the public.”

And so the CJEU concludes:

“33. It is apparent from recital 16 in the preamble to Directive 2006/115, which replaced Directive 92/100, 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 that directive in respect of broadcasting and communication to the public.

34. Article 8 of that directive, entitled ‘Broadcasting and communication to the public’, states in paragraph 3, in particular, that Member States are to provide for 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.

35. Thus, it must be held that Directive 2006/115 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 Article 8(3) 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 on conditions different from those laid down in Article 8(3) 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 Directive 2006/115, such a right must not affect the protection of copyright in any way.”

It is my contention that all of the above does not affect the existing rules on linking explained in Svensson and BestWater, mostly because the facts of those cases are different to the one at hand. In both earlier linking cases, the content had been made available to the public by the content owner, and the question was whether permission was necessary to either link or embed the content, and the answer was negative. Here the link is to an infringing webcast of the work that has not been made available by the content owner. To my reading, the issue answered by the court is not that, but it is whether the a Member State can impose wider protection, and as we have seen, the answer is positive. Particularly, it looks to me that the court is willing to give leeway to content owners prohibiting the linking to a particular transmission.

So, this will go back to the national court. I am going to make a very wild prediction based on the linking question was actually not referred, and I will claim that the court will declare that linking to infringing material that has not been allowed by the content owner will be infringement of broadcasting rights.  We’ll see how things develop.