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 Internet, was 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 

The CopyKat ..... hoping for a new public

The Drum reports that Google's move to "strangle" websites which publish copyrighted material has seen some sites suffer a 98 per cent collapse in visibility as a result of the measure - that's according to data from Searchmetrics.  The worst affected websites have been those which display links to, or directly host, copyright protected music, TV and movies. Searchmetrics has released a "top 30 loser" list, to highlight which sites have seen their rankings plummet since the changes, with Movie4k.to among those to see a 98 per cent drop.  Thepiratebay.se saw a 48 per cent fall in its Search Engine Optimisation (SEO) visibility.

And more on Google: Günther Oettinger, the man who will become the European Union’s digital economy and society commissioner in place of Nolie Kroes, is said to be considering taking the so-called “Google tax” law from his native Germany and applying it across the EU. Germany’s Leistungsschutzrecht für Presseverleger (LSR), or “ancillary copyright for press publishers” law was passed in 2013 at the behest of publishers such as Axel Springer. The LSR gives publishers the right to demand royalties from aggregators such as Google News for the use of copyrighted text in their listings. the Spanish Parliament has passed a law to levy a charge on  aggregators and search engines for using snippets or linking to infringing content - with TechDirt saying "As plenty of folks have described, the bill is clearly just a Google tax". The Irish Minister of State for European Affairs Dara Murphy said the idea veered towards protectionism.and that itwent against the principles of Europe’s single market saying "“It’s important that Europe doesn’t lurch further and closer towards protectionism just because – to date – large Silicon Valley companies have been market leaders”. In his future role, Oettinger won't be responsible for EU competition policy, but he has been a vocal critical of Google's search antitrust settlement with the EU and may have more influence over negotiations during the next phase of negotiations. Previously, he's suggested that Google could be forced to display search results objectively and neutrally, the FT noted. 

It's all about linking right now! Now with both Svensson and Bestwater out, in their  recently published opinion, ALAI believes that the CJEU got it very wrong in Svensson, in particular, the adoption of the "new public" criterion - and on that very matter, Eleonora has just posed a very interesting piece on the IPKAt here .  Some early thoughts here.

And following on from the above, BLACA are hosting what looks like a very very interesting seminar simply titled "linking" with a distinguished trio of speakers:  Prof Dr Silke von Lewinski (Max Planck Institure) will be speaking about the CJEU's concept of the  'new public', Prof Dr Jan Rosen (Stockholm University) will be speaking about the ALAI opinion and Svensson, and Prof Lionel Bently  (University of Cambridge) will be speaking on the the basis of the opinion of the European Copyright Society. It's on Thursday 13th November at 18.30 at the offices of Berwin Leighton at London EC3R 6HE - and we are promised details on the BLACA website soon http://www.blaca.org/

And finally, every three years, the U.S. Copyright Office accepts petitions on what activities should get an "exemption" under the 1998 Digital Millennium Copyright Act (DMCA). The sixth tri-annual rulemaking is now upon us, and the deadline is this Monday, November 3. Public Knowledge say they will be submitting petitions asking to legalize consumer ripping of DVDs, as well as allowing circumvention of DRM-based input to 3D printers. 

Hyperlinks, making available and the 'new public' -- or just a dead end?

Here's a provocative piece from Pekka Savola (@PekkaSavola, Legal Counsel at CSC-Scientific Computing Ltd and a researcher at University of Helsinki, Finland. Pekka has 15 years of technical background in internet working, including a degree of Licentiate of Science (Technology). He also has a Master of Laws degree and is currently putting the finishing touches to a doctoral thesis on using ISPs as a copyright enforcement mechanism. Pekka also has an article discussing hyperlinking from a blocking injunction perspective pending publication in EIPR.   This is what he has to say:

Did the CJEU just turn to a dead end in hyperlinking with Svensson? 

The Svensson ruling: much anticipated and discussed 

the CJEU judgment in Svensson (C-466/12) of 13 February 2014 ruled that a clickable hyperlink (as well as a framing link) to an authorized publicly available work does not infringe the communication to the public right because the public is not new. 

The answer to the referral questions had been widely speculated and advocated in a number of papers, including at least (plus numerous blog entries and other commentaries):

·         European Copyright Society Opinion on the Reference to the CJEU in Case C-466/12 Svensson (15.2.2013) 

·         ALAI Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the internet (16.9.2013), also published in (2014) 36(3) EIPR 149. 

·         Jane C. Ginsburg: Hyperlinking and "making available", a comment on the ALAI report, published in (2014) 36(3) EIPR 147. 

·         Alexander Tsoutsanis: "Why Copyright and linking can tango" (prepublished online on 3.2.2014, to be published in JIPLP) 

·         Jeremy de Beer and Mira Burri: Transatlantic comparisons: making available via hyperlinks in the European Union and Canada, published in (2014) 36(2) EIPR 95. 

Essentially the ALAI report, Ginsburg and Tsoutsanis advocated that hyperlinking can, as a form of making available, be infringing. The first two do not address the 'new' public and they start off from prima facie infringement. The biggest problem is trying to distinguish linking to web pages and linking to protected files. They fail to see that web pages are also protected works and technically 'files', and that a broad application leads to absurd situations that cannot be mitigated by copyright exceptions (at least in EU). Tsoutsanis used the new public criterion as a form of flexibility, although he had a more critical approach to framing links compared to the Svensson ruling. The ECS opinion failed to address 'making available' at all, and the last one barely touches on it. These two took a much more liberal stance. 

The CJEU's approach builds on the making available right, but leverages the new public requirement as the safety net. Is this good news? It is a relief against the backdrop of the ALAI opinion. That is, the ruling could have been worse. In the short term it might also be sufficient. But in the long term, the grounds appear to be worrisome. Particularly disappointing is the failure of the CJEU to substantiate why hyperlinking is 'making available'. 

The can of worms opened by Svensson 

CJEU issued its Svensson judgment without the opinion of an Advocate General. This is unfortunate, as an AG's opinion would likely have provided more research and contemplation on the implications of the decision. This would have been helpful for subsequent rulings. 

What are the loose ends opened by Svensson? I will name a few; there are others. 

1.      Hyperlinking is considered making available through 'providing direct access to works' so that the public may 'access [the work]' without any real substantiation (paragraphs 18–20). This is a dead-end for the argument that hyperlinking acts as a mere indication of (easily accessible) source. 

2.      'New public' is dependent on what the original author took into account (para. 24). This may lead to issues where the author's intention, ie. a mental element, must be examined. Luckily, the CJEU stated affirmatively that the intention is given when the work is published openly on the internet (para. 27). 

3.      The ruling only addresses scenarios where the initial communication to the public has occurred with the author's authorization. E contrario this line of argument would seem to strongly imply that the 'new public' criteria would always be met and result in infringement when the source is unauthorized or illegal. However, the linker cannot know if the target page or resource has been communicated to the public with or without authorization (and by whom). As such linking might later turn out to be illegal unless this would apply only to obviously unauthorized sources. (Martin Husovec also notes that authorized communication to the public is at least in theory narrower concept than legal publication eg. due to a copyright exception.) 

4.      Circumventing the restrictions is not discussed adequately (in para. 31). I suppose that the CJEU wanted to defer the argumentation to the pending referrals, especially C More Entertainment (C-273/13). It should be required that restrictions must be efficient enough. (Circumventing restrictions sounds a bit circular, doesn't it?) Most reasonable and efficient restrictions cannot be circumvented by linking, though they could be with other means, eg cookies. The exception are where the authorization token is included in the URL, but those are not very interesting from this perspective. Linking must not be deemed infringing by accident. For example, a stable link to an article behind a paywall should still be OK as a neutral reference; it should be the original author's responsibility to ensure that the restrictions work. 

5.      The judgment seems to imply (in para 31) that the author may later withdraw authorization by removing the work or restricting access to it. The former is an easy case, as no infringement could, it is hoped, occur due to referring to something that no longer exists. The latter could lead to problems if interpreted in such a fashion that a formerly legal link would transform to an illegal link through the acts of the author (e.g. if a disclaimer or a restriction that would not break existing links was sufficient). Suffice it to say that such withdrawal of authorization must be done so that previously legal links would stay legal by ceasing to work. 

6.      The judgment keeps repeating clickable links, even though that detail is irrelevant in the argumentation chosen. Superficially embedded links would not be covered. The arguments would seem to apply to those as well, however. 

Essentially the judgment was based on the new public safeguard which will fail in some cases. Taking for granted that hyperlinking as such is 'making available' of a work seems shortsighted. It may be difficult for CJEU to later rule – if (or when) 'new public' approach comes to a dead-end – that hyperlinking in fact is more like a reference, not providing direct access to the work. In my view, hyperlinking could be considered (at most) indirect making available of a work. 

The party who makes the work directly available (ie. offers it to the public) as originally contemplated in the WIPO Copyright Treaty is the person who puts the work on to a server, from which a member of the public may access it. There is has been no serious substantiation to the allegations that merely providing a reference to a work or (at most) indirectly making it available through a hyperlink (eg to a webpage) should or must be interpreted to fall within Art 3(1) of the InfoSoc Directive. While such an interpretation is possible, such a blanket statement would be unfortunate and a more nuanced analysis would be needed. 

Why did the CJEU not ask for an AG's opinion that might have discovered these loose ends and avoided the pitfalls in advance? Maybe the solution seemed very simple. As H. L. Mencken said, “For every complex problem there is an answer that is clear, simple, and wrong.” The CJEU apparently failed to think of the implications the line of argumentation would have. 

Let us hope a way out will be found.

What will the CJEU decide in Svensson? A snap katpoll

Less than 48 hours left before the Court of Justice of the European Union deliver its keenly awaited judgment in Case C-466/12 Svensson [here], a reference for a preliminary ruling from Sweden seeking clarification - among other things - as to whether providing a 'clickable link' falls within the scope of copyright protection. 

In particular, is a hyperlink tantamount to an act of communication to the public pursuant to Article 3(1) of the InfoSoc Directive which, as a result, requires the authorisation of the relevant copyright holder?

Question #1 in Svensson reads as follows:

"If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?"

The IPKat and Merpel have just launched a poll asking readers what answer the CJEU is likely to provide to this question. In particular:

HOW WILL THE CJEU RULE ON THE LEGALITY OF HYPERLINKS?

You have time until Thursday 13 February at 8.30 am BST to cast your vote. You can do so by selecting your preferred option at the top of the IPKat left hand side bar. DO VOTE!

European Copyright Society says that linking is not communication

Daydreaming Priscilla spent Valentine's
day thinking about Svensson

A few months ago, The 1709 Blog and the IPKat reported news of another case referred to the ever-active Court of Justice of the European Union (CJEU), seeking clarification as to the scope of the right of communication to the public within Article 3 of Directive 2001/29/EC (the InfoSoc Directive).

This is Case C-466/12 Svensson and Others [according to well-informed sources, despite hints to the contrary, for once this is not a copyright case about football], a reference from the Svea hovrätt (the Svea court of appeal is one of the six appellate courts in the Swedish legal system) asking the CJEU whether a clickable link can be considered tantamount to an act of communication to the public within Article 3(1) of this directive.

To be precise, the Swedish court referred the following questions to the CJEU:

1.   If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC ...? 

2.   Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?

3.   When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?

4.   Is it possible for a Member State to give wider protection to authors' exclusive right by enabling 'communication to the public' to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29/EC ...?

The case is a tough one and its outcome promises to have a significant impact on EU Member States, as similar issues are currently under consideration also at the national level.

Professor Lionel Bently

The 1709 Blog's friend and well-known academic Professor Lionel Bently of the University of Cambridge has brought to this blogger’s attention that the European Copyright Society has just issued an Opinion which sheds some light on this reference from Sweden. 

As readers might be aware of, the European Copyright Society (ECS) was founded at the beginning of 2012 with the aim of creating a platform for critical and independent scholarly thinking on European copyright law. ECS members are renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest. The Society is not funded by, nor has been instructed by, any particular stakeholders.

The Opinion, which has been signed by 17 leading European copyright scholars, is premised on the consideration that:

"Although hyperlinking takes many forms and has multiple functions, there can be no doubt that it is the single most important feature that differentiates the Internet from other forms of cultural production and dissemination. Hyperlinking is intimately bound to the conception of the Internet as a network, and hyperlinks constitute paths leading users from one location to another ... 
The legal regulation of hyperlinking thus carries with it enormous capacity to interfere with the operation of the Internet, and therefore with access to information, freedom of expression, freedom to conduct business, as well – of course – with business ventures that depend on these types of linkages. Europe has developed a significant sector of SMEs, many of whose web operations depend on the use and provision of links. The Court must not under-estimate the importance of its ruling in this case."

As summarised by Lionel,

There are other instances when linking
does not necessarily involve an act of communication
to the public (and does not require
an internet connection either)

"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 of Directive 2001/29. We offer three reasons for this conclusion:

(a) 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";

(b) Even if transmission is not necessary for there to be a "communication", 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";

(c) Even if a hyperlink is regarded as a communication of a work, it is not to a "new public."

However, the Opinion leaves open the possibility that in some circumstances creating hyperlinks might give rise to liability, or be part of a series of acts that gives rise to liability. In fact, as is clear from national case-law, different forms of hyperlinking may give rise to accessory liability (particularly in respect of knowingly facilitating the making of illegal copies); liability under unfair competition law; 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."

As highlighted by Jeremy on the IPKat, the outcome of this case is keenly awaited by all those good souls who are involved in blogging-related activities. As bloggers, we hyperlink all the time and we indeed consider hyperlinks as tools which allow us to either provide appropriate references which support or elaborate on our statements or direct readers towards items which they can find interesting. 

The full text of the ECS Opinion is available here.