1709 Blog: for all the copyright community

Wednesday, 19 November 2014

BLACA - a interesting evening trying to find the new public

Last Thursday saw a packed house at the BLACA evening seminar simply titled Linking. The topic was primarily aimed at learning from the differing opinions the speakers had on the decision by the Court of Justice of the European Union in Svennson v. Retriever Sverige AB (C-466/12)(Svensson), a case that addressed the issue of hyperlinking and that ruled that the owner of a website may use hyperlinks to redirect users to copyright protected works which are freely available and accessible on another site, without the permission of the copyright owner. The 1709's first blog on this was in February 2014 here. A trio of professors were on hand to offer their expert opinions, and the panel was ably chaired by a fourth, Professor Paul Torremans from the University of Nottingham. 

First up was Prof. Dr. Jan Rosen, Professor of Private Law at Stockholm University, who explained the facts behind the Svensson case and the ALAI paper that preceded it, including the fact that the original website that featured the copyright protected works in question only made them freely available for three weeks (at www.gp.se) and then the site restricted access. As the case was ultimately settled (with Prof Rosen saying that as far as he was aware the claimants in the case, two journalists, were happy with the end result) we are left with the CJEU exploring a new approach to the exhaustion of rights that which may or may not - be entirely rational. ALAI's  ten-page paper Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the Internetwas adopted unanimously by ALAI's Executive Committee back on 16th September 2014 concluding that with hyperlinks: (i) The making available right covers links that enable members of the public to access specific protected material; and  (ii) the making available right does not cover links that merely refer to a source from which a work may subsequently be accessed, and, accordingly, courts should not introduce a general presumption of the rightholder’s consent to further communication to the public of what initially has been posted on the Internet with the rightholder’s consent, since this would amount to introducing an exception or limitation to the right, while general exceptions to the scope of the “making available” right require legislative action not least because the provisions of the 'making available' right and 'communication to the public' found in WCT, the Berne Convention, the 1996 WIPO Copyright Treaty as well existing EU Directives and CJEU decisions. "This finding does not exclude that a court may be inclined to infer such consent to permit the link based on the individual circumstances of a case".

Article 3(1) of of the InfoSoc Directive of course provides that Member States shall provide authors with the exclusive right "to authorize or prohibit any communication to the public of their works, by wire or wireless means, including 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."

Prof. Dr. Silke von Lewinski, Senior Research Fellow, Max Plank Institute for Innovation and Competition, spoke on CJEU's "new public" approach and one thing that stood out from this talk and indeed from the questions at the end of the seminar from a very distinguished audience (with a glittering array of judiciary, practicioners and academics )was how open this concept could be. Whilst a "new public" could be defined as "an audience not envisaged by the copyright owner when authorising the initial communication to the public" if seems to defy detailed definition. If protected content is 'communicated' by the internet to say a London focussed audience even if for a restricted period of time, or even if for example geo filtered - is that audience then the whole of England and indeed is Europe then the envisaged public so there is no 'new public' left? And what will be the effect of technological restrctions placed on content by rights owners? Does the "new public" approach mean that the only way to protect content is to have technological measures in place to restrict acceess - even where the author has not targeted this new public or indeed wanted their work to be under some form of "compulsory licence" once its made available  - a copncept which eats at the very heart of the notion of 'authorisation'. 

Four other cases were mentioned in the discussions: Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SL where Advocate General Eleanor Sharpston held that communication of TV programmes to hotel guests by means of television sets which are fed a signal initially received by the hotel constitutes ‘communication to the public’ within the meaning of Article 3(1), The then ECJ went on to hold that "communication to the public" should be interprested broadly and that on the facts the clientele of a hotel formed a new public. The linked cases of C-403/08 Football Association Premier League Ltd and Others v QC Leisure and Others and C-429/08 Karen Murphy v Media Protection Services Ltd where the CJEU held that copyright owners must authorise any communication to the public and such authorisation was required where a person makes the protected work "accessible to a new public", and then finally the TVCatchup case C‑607/11 ITV v TVCatchup  which found that the InfoSoc Directive provides a high level of protection to authors and that it followed from this broad interpretation that the author's right of communication to the public covers any transmission or retransmission of the work to the public not present at the place where the communication originates by wire or wireless means, including broadcasting.  Authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorize or prohibit other communications of those works to the public as made clear by Article 3(3). 

Finally, and before questions, Prof. Lionel Bently, Herchel Smith Professor of Intellectual Property, University of Cambridge, gave a fascinating insight into the European Copyright Society (reavealing that whilst it was composed of renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest, it was "undemocratic", "self selected" and perhaps more importantly, that not all of its opinions are agreed by all of the members. Thoe that agree sign up. The Opinion of the European Copyright Society (ECS) puts on record its views on the questions before the CJEU in Svensson, "which relate to the hugely important question of liability of those who create hyperlinks to material on the Web without the permission of the copyright holder in that material." The Opinion argues that "hyperlinking in general should be regarded as an activity that is not covered by the right to communicate the work to the public embodied in Article 3(1) of Directive 2001/29. The Opinion offers three reasons for this conclusion: firstly, that hyperlinks are not 'communications' because establishing a hyperlink does not amount to 'transmission' of a work, and such transmission is a pre-requisite for 'communication'; secondly because the rights of the copyright owner apply only to communication to the public 'of the work', and whatever a hyperlink provides, it is not 'of a work'; and thirdly because, even were a hyperlink to be regarded as a communication of a work, it is not to a 'new public.' This does not mean that creating hyperlinks in no circumstances involves liability. In fact, as is clear from national case-law, different forms of hyperlinking may indeed give rise to the following forms of liability, such as accessory liability (particularly in respect of knowingly facilitating the making of illegal copies); for unfair competition; and for infringement of moral rights; and possibly for circumvention of technological measures. Only the last of these has been the subject of harmonization at a European level, and thus falls within the competence of the Court of Justice.". Professor Bently made it clear he and perhaps other members of the ECS who has signed the opinion had thought some more on the topic and that the ECS is not saying that hyperlinking means you can "get your music for free" or that "anti circumvention of protection technology is OK". 

It would have been interesting to have heard the panellists views on the recenty decision by the CJEU in BestWater International GmbH v. Michael Mebes and Stefan Potsch (C-348/13) where the Court held that that framing content - here  copyright protected videos - is not a copyright infringement, even if the framing occurred without the permission of the copyright owner because it is not a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (2001/29/EC)

But time was against us, and whilst this is not a criticism of the seminar or indeed the speakers, to this blogger the matter at hand felt unresolved. Unsurprising perhaps where there seemed to be a general acceptance that Svensson has left us with 'a bit of a mess', that the 'new public' is an as yet to be properly defined concept - and what constitutes legitimate and illegitimate hyperlinking is still not crystal clear. Whilst initially many thought Svensson was 'opening up' the internet, there is now a fear that worried content owners might begin to place more technological barriers to access - paywalls, log ins etc - to avoid the possibility that content had already been made freely available to the public at large.

Previous thoughts on the 1709 blog http://the1709blog.blogspot.co.uk/2014/02/hyperlinks-making-available-and-new.html

UPDATE - Eleonora's thoughts "What happened to Svensson and his friends after the CJEU decision?" on the IPKat here 

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