C More v. Sandberg and the TVCatchup referral

Written on 1 Jun 2015

The Court of Justice of the
European Union (‘CJEU’) recently
handed down judgment in the case
of C More v. Sandberg, in which it
was asked to consider whether the
EU Infosoc Directive precludes the
broad protection offered by the
Swedish Copyright Law in terms of
the right the Swedish law gives to
broadcasters to control
communication of their broadcasts
to the public, in a case in which the
defendant provided links to sports
matches on C More’s pay-TV
website without the need for users
to subscribe. Lorna Brazell, Partner
at Osborne Clarke discusses the
CJEU’s judgment as well as the
recent referral to the CJEU made by
the UK Court of Appeals in the
dispute between multiple UK
broadcasters and streaming service
TVCatchup.

Introduction 

As an ever increasing proportion of
information and entertainment is
consumed online, the interplay of
laws governing copyright and
related rights, such as those in
broadcasts, has become ever more
crucial. 2014 saw the CJEU make
three critical decisions on
copyright and the provision of
links: Svensson, Meltwater and
Bestwater. Between them, these
decisions clarified that the
provision of a link to copyright
material on another site can in
some circumstances amount to
infringement of the copyright in
that material – but, crucially, that it
will not always do so. The
determining factor is the status of
the material linked to. Where that
material is freely available such that
the link does not provide access for
the first time to any new public, then there will be no infringement.
Where, on the other hand, the
material is subject to restrictions
on access – for instance by a
paywall arrangement requiring
users to subscribe to the site before
seeing the material – then a link
that enables users who have not
subscribed, and thus did not
already have access, to access the
material, does communicate the
material to a new public and so
infringes. 

Those cases were not the end of
the story, however. For a start,
questions will arise as to what
constitutes a sufficient barrier to
access on the original site, such
that a link circumventing it will
indeed introduce a new public to
the work. It is possible to imagine a
site where access is conditional (in
law) upon accepting terms and
conditions, but where it is
nevertheless possible for a
moderately sophisticated user to
access the material without
indicating acceptance. In those
circumstances, does a link that
avoids the requirement to accept at
all communicate the work to a new
public or should it be assumed that
in practice anyone who wanted
access could already have obtained
it? 

Thus, it is safe to say that the
CJEU will continue to hear
copyright references for the
foreseeable future. The first
decision on internet and copyright
matters of 2015, however, related
to a different issue: the extent to
which Member States’ laws can
provide broader copyright or
related right protection than is
mandated by Directive 2001/29/EC
on the harmonisation of copyright
and related rights in the
information society (‘the Infosoc
Directive’). The Infosoc Directive,
being the European Commission’s
first attempt to tackle the issues of
copyright generally, was a
masterpiece of political pragmatism. It made limited
provision for certain forms of
copyright related to the
transmission of works online, and
created an extensive list of
exceptions, all optional apart from
the single mandatory exception
that was considered in the
Meltwater case. 

As a result, the copyright laws of
the EU Member States remain a
patchwork quilt, but one in which
only certain sizes, shapes and
colours of patches were permitted
to be used. It is not surprising that
with such a palette to choose from,
no two Member States have ended
up with quite the same quilt. In
particular, many Member States
made the minimum changes
necessary to their existing
copyright legislation, in order to
comply with the Directive. This has
left a number of questions as to the
compatibility of these ‘heritage’
provisions with EU law.

C More v. Sandberg 

The Court’s decision on 26 March
2015 in the dispute between C
More Entertainment and
Sandberg1 related to such a heritage
provision in the 1960 Swedish Law
on Copyright in Literary and
Artistic Works. 

C More is a pay-TV station,
which provides live broadcasts of
sports events, such as ice hockey
matches, to subscribers. Mr
Sandberg provided links that
enabled sports fans to see two
matches on C More’s site, without
subscribing. 

Since a live broadcast does not
include any pre-recorded material
(unless for instance it includes
programme theme music), it does
not attract copyright as a film
would. The Swedish Copyright
Law gives broadcasters the right to
control communication of their
broadcasts to the public (as,
indeed, does the English
Copyright, Designs and Patents Act 1988 (‘CDPA’)). But under Article
3 of the Infosoc Directive, Member
States only have to give
broadcasters the exclusive right to
control communication to the
public of fixations of broadcasts
on-demand. The Swedish law
therefore extends considerably
broader protection, and the
Swedish Supreme Court asked the
CJEU whether such broad
protection was precluded by the
Infosoc Directive. 

The Court’s response confirmed
that the Infosoc Directive was not
intended to and did not prescribe
precisely what Member States’
copyright laws could or could not
protect. Rather, its objective was to
remove any differences between the
national laws, which adversely
affect the functioning of the
internal market; anything else, and
in particular higher standards of
protection, were left unaffected.
Indeed, recital 16 of the later
Directive 2006/115 on rental and
lending rights and related rights
specifically states that Member
States should be able to provide
more far-reaching protection in
respect of broadcasting and
communication to the public.

The TVCatchup referral 

Hardly had the ink dried on that
decision than on the same day the
English Court of Appeal elected,
unexpectedly, to refer its own
question to the CJEU on the
subject of broadcasts and internet
TV. The long running dispute
between TVCatchup and a group
of English broadcasters has not yet
exhausted all of the possible issues
arising from TVCatchup’s service,
consisting of an internet-based live
stream of broadcast television
programmes. At first instance, the
court referred a first question to
the CJEU asking whether or not
TVCatchup’s streaming constituted
a communication to the public at
all given that the public receiving the service was the same public
who were already able to receive
the material on their TV sets (if, in
this day and age, they actually still
have them). The CJEU concluded,
consistently with its earlier
Airstream decision, that the
intervention of a different technical
means of transmission meant that
the streaming did constitute a new
communication to the public2.
TVCatchup was therefore unable
to continue its service save insofar
as they had any alternative defence. 

In fact, TVCatchup nevertheless
partially succeeded in that the
judge held that its service
retransmitting public service
broadcasts (‘PSB’) from ITV,
Channel 4 and Channel 5 was
permitted under section 73 CDPA.
This section was intended to
encourage provision of cable
services and, accordingly, permits
the immediate retransmission of
the main PSB free to air services by
‘cable’ (including microwave fixed
point transmissions) in the area
where the original PSB channel
was broadcast.

The principal question the Court
of Appeal was asked to consider
was whether or not the
retransmission constituted a cable
transmission if the signals travelled
not over a dedicated cable
television network but over any
other form of wire, such as the
telephone networks underlying the
internet. This in turn requires the
Court to establish what the term
‘cable’ means, as a matter of EU
law. The broadcasters, and the
Secretary of State, argue that it
means what a layperson would
imagine it to mean: traditional
cable TV services, operating over a
dedicated cable network. This
explanation makes sense in the
light of national law provisions
requiring cable operators to permit
broadcasters to access their
networks in order to transmit
programmes to areas beyond the reception area of traditional over the-
air TV signals. TVCatchup
argues that there is nothing in EU
law requiring this limited meaning,
and that it is therefore applicable to
any form of transmission using a
physical carrier. If TVCatchup are
correct, then it can claim that the
section 73 defence continues to
apply since Article 9 of the Infosoc
Directive specifically preserved any
existing national legal provisions
concerning access to cable of
broadcasting services, despite the
other changes that the Directive
made to the rights and exceptions
applying to communications to the
public.

Unfortunately, the Court of
Appeal’s conclusion was that the
intended meaning in Article 9 is
unclear, and so the CJEU must be
asked to give its understanding. A
further year or two’s wait therefore
seems inevitable before a second
CJEU decision in this case can be
expected. 

The Court of Appeal did at least
give finality to another issue in the
case: TVCatchup’s attempts to
argue that s.73 permitted them to
stream over 3G/4G networks for
reception by mobile handsets.
Since s.73 does not contemplate
any kind of part-cable-part-over
the air arrangement (except
microwave fixed-point links), this
argument failed.

This article first appeared in E-Commerce Law & Policy.