Can Save-the-Link Save the Day?

Many people like to think of the law on copyright as being technology neutral. And to a degree it can be, where the technological evolution follows a vaguely linear path, say from text on a printed page to text from a word processor, or art done in oil paint to artwork created using a graphics software package. But from time to time the family of works which copyright seeks to protect is joined by a cuckoo, which may not immediately fit neatly into the existing legal templates or caselaw. An early example was photography. Arguably, even today it has still to reach full parity with other artistic works, as shown for instance in the recent French case concerning a photograph of Jimi Hendrix, reported by Marie-Andree here, but also in such cases as Painer (C - 145/10) and Bridgeman Art Library which demonstrate that the subject of originality in photographs is far from settled law. If further evidence that photography remains something of an outlier was needed, we can see it in last year's debate over the macaque monkey photographs. Part of the problem is technological - the fact that a camera generally speaking makes a faithful image of whatever is in front of the lens and so by definition a photograph starts out life as a copy of something - and partly it is to do with the law's approach to defining originality.

For well over the first hundred years of that particular technology, copyright law treated it is as lex specialis (for example, see section 21 of 1911 Copyright Act , Article 7 (4) of the Berne Convention and § 72 of the German Urheberrechtsgesetz).

Something similar occurred with motion pictures and sound recordings. The law was slow to give them equivalence to the traditional genres of copyright work, so that even now, determination of who is the 'author' and what term of protection to give, are both different to what applies in the case of literary, artistic, dramatic and musical works. And even more recently we have seen databases shoe-horned into the general framework, under the label of being sui generis, with different criteria for determining 'originality' and what constitutes copying. And then, right up to date, we have the issue of digital exhaustion, and the apparent splitting of the jurisprudence between software (lex specialis) and other types of digital works.

But despite these examples, not all new technologies are as disruptive to the copyright jurisprudence as they might at first appear to be. I believe that 3D printing currently falls into this category, although others argue differently.

And that lengthy preamble brings me to the real subject of this polemic: linking. The recent launch of the Save the Link campaign (more details here and here) was aimed at raising awareness of the real possibility that the European Parliament could shortly compound the error I think the Court of Justice of the European Union made in Svensson (C -466/12), where it found [23] that a hyperlink was a communication to the public. Many people criticised the Svensson judgment, but in my opinion, for all the wrong reasons. Had the court found that hyperlinking per se was not a communication to the public, then the larger question about the kind of public (either 'new' or the one envisaged by the copyright owner from the outset) would not have needed to be addressed. Linking is just the modern day equivalent of the footnote or bibliography to be found in virtually any academic or learned paper, journal or book. It should be one of those cases where the existing law is more than capable of regulating a new technology.

Although various internet campaigns, such as the one against SOPA or the continuing debate over net neutrality, have been successful, I am more sceptical about the chances of the Save the Link campaign. Not because it lacks merit. It obviously doesn't, but because its target - the European Parliament - is less easy to influence than a bunch of politicians on Capitol Hill. By definition, elected politicians need to be sensitive to the will of the people who elect them, but the European Parliament is a very different animal to either Congress or the parliaments of most member states of the EU. It is more remote from its electorate (few constituents know the name of their MEP or lobby them in any meaningful way, and even fewer would be able to outline the manifesto policies she/he stood on), and the parliament itself is generally reactive, having no power to initiate legislation, only to reject or amend legislative proposals emanating from the Commission. Rarely does the Parliament reflect the true feelings of the electorate which put them there. One notable exception to this state of affairs was their rejection of the ACTA treaty in 2012. I suppose it is upon this singular success that the Save the Link campaign is building its hopes. However that is not to say that European Parliament is immune to lobbying, far from it, it continues to be successfully targeted by many large corporations and other vested interests, and it is these influences that Save the Link is struggling to counter.

But despite the energy and determination of the Open Media consortium which is behind the Save the Link campaign, whose work I applaud, I have little faith in it influencing the way the EU will proceed, either with regard to linking or any other specific policy detail in the proposed copyright reform package. Oh, and the critical European Parliament vote takes place tomorrow, Tuesday 16 June.

Update. A press release on yesterday's vote by the Legal Affairs Committee urging the Commission to press ahead with the Copyright Reform package can be found here. There was no mention of the specific topic of linking.