Thursday, 16 February 2012

Some Thoughts on the Right of Communication to the Public on the Internet

Along with the right of reproduction, the right of public performance (or communication to the public) is one of the two fundamental rights enjoyed by a copyright holder under French law. Determining when this right has been infringed is therefore of obvious interest.

Looking at the case-law, a first distinction can be drawn between cases involving a lawful initial communication to the public where the issue is whether there has been an unauthorized further communication and those where the initial communication is clearly unlawful and the issue is whether there has been further communication. In these latter cases, the courts are not averse to finding that there has in fact been unathorized further communication based on facts that might not normally in and of themselves constitute communication to the public (e.g., providing links to pirate sites).

As regards the former cases (lawful initial communication), the issue is usually determined by reference to the "new public" test, i.e., does the relevant act communicate the work to a new public not taken into consideration by the rightsholder when he authorized the initial communication? (see also CJEU 4 October 2011 :

When applied to the internet (and, more specifically the World Wide Web), the question is not an easy one to answer. Given the international, open nature of the Web (subject of course to paywalls), the decision to post or stream a work online is, generally speaking, one to (potentially) communicate it to everyone with an internet connection and a browser.

A recent ruling by the Paris Court of Appeals (30 November 2011) provides an interesting case in point. The case involved typosquatting whereby the defendant took advantage of the fact that people sometimes mistype the domain name they intend to type to create a system whereby certain misspellings led to a "transit" site (which generated advertising revenue for the defendant) before leading to the actual site the person obviously intended to visit. One of the grounds raised in the action (along with infringement of domain name rights, trade name rights and trademark rights) was infringement of the right of communication to the public of the work (the website). The Court sided with the plaintiff, agreeing that the defendant had communicated the site to a new public. The Court held:

"... by automatically re-directing certain websurfers towards Trokers site by parasitically exploiting addresses that it had purposefully altered [...] Web Vision communicated this site to the public by an unauthorized means and thus engaged in an act of exploitation of this site that is distinct from that initially desired by its owner, which constitutes unlawful communication to the public within the meaning of Section L.122-4 of the Intellectual Property Code."

This finding seems to strain credulity inasmuch as it is obvious that someone who mistyped the domain name really did intend to visit the site he eventually did visit and the publisher of this site surely intended to communicate the site to such person.

The typosquatting decision can be read here (in French):

For another approach see the M6 Replay decision here:

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