EU illegal IPTV research – broadcasters’ copyright

Key Points

• Broadcasters’ rights cover on-demand streaming but not necessarily live internet streaming.
• Only seven Member States explicitly recognise broadcaster’s rights in live internet streaming: Austria, Czech Republic, Denmark, Finland, Romania, Sweden and the UK.

• Rights holders of works and other subject matter incorporated in TV broadcasts are protected against a wide range of potentially unauthorised acts, including cloud recording, internet retransmission, hyperlinking and indexation of TV broadcasts.
• Sporting events as such are not eligible for copyright protection under EU law; however, audiovisual recording of sporting events and works included in such recording (e.g. sound recording, original music and graphic works) are likely to attract copyright under both EU and Member States’ laws.

TV broadcasts attract two distinct layers of rights:

• rights in the content incorporated in TV programmes, which may include copyright in protected subject matter such as literary, musical, artistic and cinematographic works, as well as related rights in sound recordings and performances;
• the broadcasting organisation’s right in broadcasts, which applies to the programme-carrying signal as such, whether the signal is transmitted over the air, cable or satellite.

These two layers of rights must be assessed separately, as they differ as to the conditions of subsistence, initial ownership and — more importantly — scope of application on the internet.

Copyright-protected subject matter under the acquis communautaire include any form of expression in the literary, scientific and artistic domain, including cinematographic works, photographs, computer programs and original databases. The CJEU has clarified that the sole criterion to determine the subsistence of copyright is the presence of elements that express the ‘intellectual creation’ of the author, i.e. elements that depend on the making of ‘free and creative choices’ in the production of the work. In this vein, the court has ruled that sporting events do not qualify as protectable subject matter within the meaning of the Information Society Directive, even though they may be protected by specific legislation of Member States.

While sporting events as such do not attract copyright or related rights protection, the audiovisual recording of sporting events may receive protection insofar as it meets the requirement of originality. This is likely to occur insofar as the director is able to make ‘free and creative choices’ as to where to position the cameras and/or to instruct the camera operators during the match to focus on specific sides of the pitch or moments of the game.

Similarly, other works and subject matter that are typically included in the recording and transmission of sporting events, such as opening sequence, background sound recording, original music and graphic works, may be copyright protected on their own merits. Although in principle any original expression can attract copyright under EU law, the court also found that the protectable subject matter must be a ‘work’, namely it must be ‘expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though […] not necessarily in permanent form’. It is still an open question whether intellectual creations like TV formats meet this threshold and are protectable on their own.

Unlike copyright in works, the related right in broadcasts is not subject to the originality requirement under EU law and the conditions of subsistence is left to Member States. The right vests in the broadcasting organisation on transmission of the broadcast over the air, cable or satellite.

The broadcasting organisation holds the right in the programme-carrying signal and is typically the licensee of the rights in the content incorporated in the programme. Such licences can be limited both territorially and as to the technical means of transmission, so that for instance a broadcasting organisation may be the exclusive licensee for cable transmission only in a given country.

While the organisation can enforce its broadcast rights erga omnes in any available jurisdiction, the enforcement of rights in the content incorporated in the programme is limited by the scope of the licence. This point must be taken into due account when examining the available enforcement actions against unauthorised IPTV, as the broadcasters’ rights on the internet are narrower in scope than the rights conferred on authors of original works.

Under the Information Society Directive, broadcasts attract rights which are narrower in scope than those pertaining to ‘works’. In particular, broadcasts do not attract the general right of communication to the public but only the (narrower) right of making available to the public of fixations of the broadcasts.

While commentators and national courts have occasionally argued that the making available right may apply to both live and on-demand transmission on the internet, the CJEU clarified that ‘making available’ refers exclusively to ‘interactive on-demand transmission’ and does not extend to live streaming.

The court held that EU law does not prevent Member States from extending the scope of the broadcasters’ related rights beyond the acts envisaged in Article 8(3) of the Rental and lending Directive (namely: communications in public places upon payment of a fee), on the sole condition that these rights do not undermine the protection of copyright.

This means that the broadcast signal may be protected at national level against a broader spectrum of activities, including most notably simultaneous retransmission via live internet streaming, providing that this extended protection leaves unaffected the ability of rights holders of the content incorporated in the broadcast to exploit the copyright in their works independently.

The table below summarises the scope of protection available under EU law to broadcasters vis-à-vis internet streaming:

	On-demand streaming	Live streaming
Content included in broadcast programmes	Yes	Yes
Broadcasts’ transmission	Yes	No (but possible at Member State’s level)

The CJEU ruled that the provision of an online service for remote recording of TV programmes constitutes ‘communication to the public’ under Article 3 of the Information Society Directive and is not exempted by the exception for private copying. Although the referral related to copyright in the broadcast content and did not raise explicitly a question on the broadcaster’s related right, the decision of the court applies to both layers of rights, insofar as online video recording constitute an act of making available of fixations of broadcasts.