Does the CJEU require single-territory licensing of streamed content?

Imagine a service established in member state A that wishes to deliver on-demand streamed access to music and films to consumers in each of the other 27 member states.

Does the service need to license that service 28 times over to clear copyright in each of the states? The answer to that question has two parts: (i) in which countries is the relevant copyright (the communication to the public right) engaged; and (ii) in respect of which of those countries does the service need to be licensed? Three recent decisions of the Court of Justice of the European Union (CJEU) — Pinckney, Football Dataco v Sportradar and FAPL/Karen Murphy — have started to suggest what the answers to those questions may be. 

The communication to the public right gives copyright owners the exclusive right to authorise or prohibit 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. A service that enables online streaming of works obviously engages that right. It is not so obvious, however, that that right is engaged in every country in which the work is available. The CJEU’s decision in the Football Dataco v Sportradar case gives the strong indication that the right will be engaged in whichever country the service intends to target. It is not the receipt of a communication that makes the act take place in the country of receipt; it is the fact that the service provider intends to target the country. As such, it would be possible for consumers to be able to access works in which the communication to the public right is not engaged…

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