Play or Replay

The European Court of Justice’s decision was followed by Supreme Courts of Sweden, and it penned down its judgment on “whether broadcast is entitled to copyright protection”. The EJ decision also embarked upon the issue of providing wider privileges to the right holders for facilitating communication to the public beyond what is covered under Article 3(2) of EU Directive.

The ultimate ruling of the Court came up in the light of two issues: 1) whether linking to live broadcast of games can be termed as “communication to public” 2) whether broadcasts are protected as literary or artistic works.

Tackling with the aspect of communication to the public the Supreme court is of the view that, access to live broadcast of games from a third party website without having to pay the royalty is  held as an act of communication to the public. As for the live broadcast being considered as copyright-protected, the Court’s observation is noteworthy. Though the cameraman, producers etc. plays important role in the broadcasting of the games nut none of their work is artistic to be qualified under copyright. To meet the requirements of copyright a work should be an intellectual creation and as broadcasts are part of the events it cannot fall under the protection of copyright. The commentators, cameraman and other technicians do not reach even near intellectual sphere to afford copyright protection. Therefore, the broadcasters do not hold any copyright on their work but they definitely have related rights or neighboring rights attached to the replay within the broadcast, and nothing else.

According to the Swedish copyright Act, copyright protection means controlling the right by making it available to the public either on demand or by direct streaming of the same. Even though live broadcasts were considered as “communication to the public” but it cannot be termed as infringement of copyright. Only the communication of the replays is considered as infringement of copyright as the instant replays falls under the neighboring rights. This does not preclude certain sporting events unworthy of protection, and they ought to be protected as related or neighboring rights, not copyright per se.

The key issue the Supreme Court has dispensed with if the broadcast of games meet the criteria of copyright protection. The court has very lucidly justified the point and evolved a new phenomenon in the area of European copyright jurisprudence. It has supported that, the Swedish copyright Act is in tandem with the EU standard, but the rights as regards the broadcasting can only be protected as related rights, embracing only replays within the broadcast. At the same time the Court’s elaborate judgment can raise a concern over the graphics which ought to be covered by the copyright. This aspect has not been dealt by the court and deserves a proper analysis by the Court, and it would be unwarranted to say that no part of the sport broadcasts can get copyright protection.  There are few aspects in the sport broadcast which are intellectual creations and come under copyright protection.

The decision would definitely act as an impetus for the broadcasting industry to bring in their creativity and innovation to attain copyright protection. Another important observation is that, the restriction imposed on the hyperlinks accessible by technically sound persons did not disrupt the assessment or valuation. But the circumvention of the links provided for live broadcast without paying to the authority constitutes infringement.  As the case has been initiated in the year 2007, a considerable development is on the track to prevent unlawful linking to the live broadcasts without authority.