THE COPYKAT

CREATe Public Lecture 2017: the Case for a Related Right for Press Publishers

CREATe is the Research Council UK’s Centre for Copyright and New Business Models in the Creative Economy at the School of Law – University of Glasgow. The Centre is headed up by Professor Martin Kretschmer.

On February 14^th, Thomas Hoeppner (Professor of Civil Law, Business Law and  Intellectual Property Law, Wildau Technical University of Applied Sciences, and, Partner in a Berlin based law firm), will present on “EU copyright reform: the case for a related right for press publishers.”

The CREATe website states that:

“On September 14th 2016, the European Commission presented a package of proposed copyright reforms under the banner of promoting a Digital Single Market (DSM). Amongst others, the proposal includes an exclusive right of press publishers for the digital publication of their press publications.

The proposal has been criticised by academics arguing that the right lacked a justification and would interfere with the access to information (see above). Picking up on this lecture against a publishers’ right, Prof. Hoeppner investigates the merits of such a right. To this end, the lecture outlines the economic and technical background including the developments in the consumption of press publications since the current legislation came into force. The lecture will then present the arguments in favour of the proposed right and examine the counter-arguments raised against it.”

This lecture is in contrast to a previous lecture presented by Professor Raquel Xalabarder (Chair of Intellectual Property, Universitat Oberta de Catalunya, Barcelona, Spain), in which she discussed the press publisher rights in the proposed Directive on copyright in the Digital Single Market, arguing that the right would not actually achieve the desired policy objectives set out in the recitals.

The lecture is free and open to everyone.

It will be held in the Humanities Lecture Theatre in the University of Glasgow on Tuesday 14 February 2017, 17:30 – 19:00.

Visit the CREATe webpage to register for the event.

P.S. This 1709 Intern is currently preparing analysis on the proposed exclusive right of press publishers for the digital publication of their press publications – watch this space!

Postdoctoral Fellowship Opportunity at Harvard – deadline March 1, 2017

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Qualcomm Fellowship in Private Law and Intellectual Property.

The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Centre events, and blogging.

Purpose

The Project on the Foundations of Private Law is an interdisciplinary research programme at Harvard Law School dedicated to scholarly research in private law. Applicants should be aspiring academics with a primary interest in intellectual property (especially, patent, copyright, trademark and trade secret) and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy and comparative law. The Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property is specifically designed to identify, cultivate and promote promising IP scholars early in their career.

More information can be found at http://www.law.harvard.edu/programs/about/privatelaw/index.html

Programme

The Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property is a full-time, two year residential appointment, starting in the Fall of 2017. Like other postdoctoral fellows, IP Fellows devote their full time to scholarly activities in furtherance of their individual research agendas in intellectual property and private law.

Eligibility

By the start of the fellowship term, applicants must hold a J.D. or other graduate law degree. Applications will be evaluated by the quality and probably significance of their research proposals, and by their record of academic professional achievement

For more information, please contact Bradford Conner, conner@law.harvard.edu.

Applications must be received by March 1, 2017.

DailyMotion Permanently Blocked in Russia As A Consequence of Copyright Complaints

DailyMotion, the video-hosting platform, has been permanently blocked in Russia.

The Moscow City court has ordered local ISPs to block subscribers from accessing DailyMotion. In other jurisdictions, this measure is usually reserved for ‘pirate’ sites, such as The Pirate Bay and Book-Fi.

The blocking of DailyMotion is a consequence of repeated allegations of copyright infringement by Gazprom Media, as well as DailyMotion’s alleged inadequacy in dealing with those allegations. his story began back in 2016, when Gazprom Media discovered that video clips from one of its TV channels were being hosted on DailyMotion without permission. Gazprom Media told Russia’s Gazeta that its representatives had sent several complaints to DailyMotion’s offices over the course of 2016 but no response was received. Gazprom Media had DailyMotion URLs blocked at least twice during 2016 by the Moscow City Court. In December of 2016, DailyMotion was given a last chance to remove the problem clips from its platform. The subsequent failure of DailyMotion to comply with the Moscow City’s courts order has led it to engage the laws applying to repeat copyright infringers, therefore giving an order to local ISPs to block DailyMotion permanently.

In comments made to The Hollywood Reporter, a spokesman for DailyMotion stated that the company had no knowledge of any ongoing court procedure against it and was going to “take all necessary steps to make contact with relevant authorities in Russia to resolve the issue.”

Shattered Mirror; News, Democracy and trust in the digital age

Just a few days ago, the Public Policy Forum released its anticipated report on the future of Canadian media, entitled, “Shattered Mirror; News, Democracy and trust in the digital age.” The decline of the news industry is a hot topic across the globe at the moment, with the proposed neighbouring right for news publishers found in the Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market sparking much debate across Europe.

The report makes 12 recommendations (summarised here), including a review of the Copyright Act’s fair-dealing rules in order to strengthen the rights of news originators to control their intellectual property.

The Copyright Act’s fair-dealing rules

The most recent iteration of Canada’s Copyright Act was enacted in 2012, and is due to be reviewed this year. It includes a series of listed exceptions to copyright infringement, including a fair dealing exception for news reporting at Article 29.2. The fair dealing exception in relation to news reporting state that;

“Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:

(a)  The source; and

(b)  If given the source, the name of the

a.       Author, in the case of a work,

b.      Performer, in the case of a work,

c.       Maker, in the case of a sound recording, or

d.      Broadcaster, in the case of a communication signal”

Reviewing the Copyright Act’s fair-dealing rules to strengthen rights of news originators to control their intellectual property (recommendation number 4)

The Public Policy Forum recommends on page 90 of the report a review which “tightens usage of copyrighted news material in favour of creators, without unduly stifling the social power of sharing on the Internet. News producers have a right to benefit from their work for a reasonable period while pursuing the business strategy of their choice.”

The report goes on;

“In many cases, the issue arises when aggregators, bloggers or others use material without permission. This is good for the aggregator, and perhaps convenient for the consumer, but even if the material links back to its source, the original producer should be able to decide whether it wants to share – and whether it wants to negotiate compensation in some form.”

An anecdote is subsequently given;

“In different circumstances, the New Brunswick Telegraph-Journal told us of an exclusive photo posted on its site during the 2014 attack in Moncton that left three members of the RCMP dead. The site maintains what is known as a “hard paywall,” making content available only to paid subscribers. As a result, it experienced a spike in registrations when word spread of its photo. Then the CBC copied the photo

without permission, and the spike quickly subsided. What the CBC did is, in one way or another, common these days, and can be argued to be permissible under fair-dealing provisions.”

This recommendation is likely to spark much debate over its potential consequences for free speech, and whether narrowing the fair-dealing exception in relation to news would result in the desired economic improvement for the news publishing sector. This recommendation has already attracted criticism, and it will be interesting to follow the parallel unfolding debates on this issue across the European and Canadian jurisdictions.

European Copyright Society – Opinion on EU Reform Package

On a brief and final note, the European Copyright Society published its Opinion on the EU Reform Package on 25 January 2017.

The European Copyright Society provides a platform for “critical and independent scholarly thinking on European Copyright Law and policy. Its members are scholars and academics from various countries of Europe, seeking to articulate and promote their views of the overall public interest on all topics in the field of authors rights, neighbouring rights and related matters.”

This CopyKat from Tibbie McIntyre

Should a Work in the Public Domain Be Able to Become a Trademark?

Here is the latest post from our Intern Tibbie McIntyre.

Gustav Vigeland was an eminent Norwegian sculptor whose most notable works include the Vigeland installation, a staggering arrangement of two hundred and twelve granite and bronze statutes covering eighty acres in Oslo’s Frogner Park, and the design of the Nobel Peace Prize medal.

A particularly unique deal was struck between Vigeland and the Municipality of Oslo (Oslo commune, “the Municipality”) in 1921, stating that Vigeland would bequeath the copyright contained within his life’s work to the city in return for the use for the remainder of Vigeland’s lifetime of a purpose built house and studio.

‘Monolitten’ (The Monolith)

Photo Credit: Nickrds09, available here. 

It is Vigeland’s work which is now at the centre of a case before the European Free Trade Association (“EFTA”) Court (E-05/16), which at a previous stage in proceedings, has been reported on over at the IPKat here.

With copyright protection for Vigeland’s work coming to an end in 2014, the Municipality applied for trade mark protection in relation to over one hundred of his pieces, including ‘‘Monolitten’ (The Monolith) (pictured above) and Sinnataggen’ (The Angry Boy) (pictured below).

The move could be considered by some as an attempt to extend legal protection for Vigeland’s work beyond the usual life of copyright, usurping the policy objectives behind copyright legislation with trade mark law. It could be considered by others as an astute commercial move by the Municipality (which has invested considerable money and effort in the promotion and curation of these treasured cultural artefacts) in order that it might maintain some control over its investment. In any event, the Municipality appears to be attempting to layer various different forms of IP rights in order to extend the originally bestowed copyright protection for the works of Gustav Vigeland. 

‘Sinnataggen’ (The Angry Boy) at Frogner Park, Oslo

Photo Credit: Hiytel under a CC BY-NC-SA 2.0 licence.

The bulk of the trade mark applications submitted by the municipality for trade mark protection have been put on hold, and a number of the applications were refused by the Norwegian Industrial Property Office (“NIPO”), on the basis of:

-          Section 14 first paragraph of the Trade Marks Act, with NIPO finding a lack of distinctive character in relation to the applications refused,

-          Section 14 second paragraph (a) of the Trade Marks Act on the prohibition of purely descriptive marks (i.e. the prohibition on marks that exclusively indicate the kind, quality, quantity, intended purpose, value or geographical origin of the goods or services, the time of production of the goods or of the rendering of the services or other characteristics of the goods or services)

-          Section 2 second paragraph third alternative of the Trade Marks Act on trade marks, where a right may not be acquired for signs that consist exclusively of a shape that results from the nature of the goods themselves, is necessary to obtain a technical result or adds substantial value to the goods.

The Municipality appealed NIPO’s decision to the Norwegian Board of Appeal for Industrial Property Rights (Klagenemnda for industrielle rettigheter; “The Board of Appeal”), which in turn considered whether the trade mark applications should be refused on additional grounds. The Board of Appeal consequently requested an Advisory Opinion for the case from the EFTA Court.

In The Report for the Hearing, the additional grounds the Board of Appeal considered might be the basis for refusal are cited as Section 15 first paragraph (a) of the Trade Marks Act (designed to implement Article 3(1)(f) of Directive 2008/95/EC), which details the absolute ground of refusal to register a trade mark, where the mark is found to be contrary to public policy or to accepted principles of morality.

The Board of Appeal also referred to the Mona Lisa case (Case 24 W (pat) 188/96, GRUR 1998, p. 1021 of the German Federal Patent Court), in which there was an attempt to register the Mona Lisa as a trade mark. In that case, the application was refused because of a lack of distinctiveness; the Da Vinci painting is often used by third parties, and would not serve to convey the origin of any specified goods or services. The Board of Appeal questions whether that decision should set precedent in European law, and whether trade mark applications of well-known works can only be refused on grounds of lack of distinctiveness.  If this is the case, is there the possibility where distinctiveness can be achieved through use – therefore qualifying the work for registration at a later stage?

This same point is eloquently expressed by The European Copyright Society’s (“ECS”) cogent response; “The decision of the German Federal Patent Court thus raises the possibility that the obstacle to registration may be overcome through intensive use of the sign in product marketing and advertising.” (Page 7 of the ECS response)

The Board of Appeal also references the Opinion of Advocate General Ruiz-Járabo Colomer in Shield Mark. Shield Mark may be relevant as the Advocate General states at paragraph 52;

“I find it more difficult to accept … that a creation of the mind, which forms part of the universal cultural heritage, should be appropriated indefinitely by a person to be used on the market in order to distinguish the goods he produces or the services he provides with an exclusivity which not even its author’s estate enjoys.”

Parallels can clearly be drawn in this case from the Advocate General’s words quoted above, and to grant trade mark protection for Vigeland’s work would most definitely grant the Municipality an exclusivity the creator’s estate never enjoyed.

The full set of questions referred to the EFTA court can be found here, as well as The Report for the Hearing, which includes written observations from the Municipality, the Norwegian Government, the EFTA Surveillance Authority, the European Commission and the German, Czech and UK Governments.

ECS’s response deals with the layering of IP rights and specifies that – in some cases – the cumulation of various forms of IP can potentially undermine policy objectives. This can lead to ‘dysfunctional cumulation’, which may “distort competition or may lead to a situation in which protection in one area of intellectual property law undermines the rationales and objectives of protection in another” (ECS opinion, page 2).

This writer would most definitely welcome comments from interested parties on this case, whether the consensus is that the Municipality are usurping copyright policy objectives or whether the decision to apply for trade mark protection is an astute commercial move. Keep watching the 1709 blog for updates on this case.

The CopyKat

Kim Davis, the county clerk in Kentucky who was jailed for five days for refusing to give marriage licenses to same-sex couples may now face a copyright lawsuit. At a post-release rally with Republican presidential candidate Mike Huckabee, the Survivor recording of "Eye of the Tiger" was played to 3,000 people —and this immediately produced a furious reaction from a band member. "NO! We did not grant Kim Davis any rights to use 'My Tune -The Eye Of The Tiger" wrote Survivor frontman Frankie Sullivan on the band's Facebook page. Sullivan had previously sued Newt Gingrich (the Republican politician and Speaker of the House of Representatives who was a Republican presidential hopeful) in 2012 for using "Eye of the Tiger" at one of his political events - the case was later settled.

The EFF have filed a friend-of-the-court brief in the Court of Appeals for the Ninth Circuit, arguing against a district court decision that upheld state law copyrights in pre-1972 sound recordings. The EFF recently filed a similar brief in the Second Circuit - both cases were victories for  Flo & Eddie, aka The Turtles (pictured right) who successfully persuaded district courts that state copyright law restricts public performances of pre-1972 sound recordings in their battle against SirusXM. A similar action in Florda failed - here the court found there was no state law to protect pre-1972 sound recordings. 

Now here's a thing - hackers targeting pirates: TorrentFreak reports that several prolific torrent uploaders have received an alarming message claiming to be from the legal department at major label Warner Music UK. The email accuses the user of copyright infringement and urges uploaders to delete their torrents and accounts, which some have done in response. However .... on closer inspection the threatening email appears to be fake say TorrentFreak, who received a full copy of the grammatically inept message which was sent to email addresses associated with the uploaders’ torrent site accounts - although how the sender accessed those addresses is unknown. A few weeks ago KickassTorrents warned its users against phishing attempts, in which malicious parties attempt to obtain the personal details of users.

On June 11, 2015, the Advocate-General Pedro Cruz Villalón delivered his Opinion in HP Belgium v. Reprobel now pending before the Court of Justice of the EU (CJEU, case C-572/13). This Opinion and the underlying case raise one important issue: Is it permissible for a national copyright law to allocate a portion of the fair compensation for reproductions exempted under Article 5(2)(a) and (b) of the 2001/29 Infosoc Directive directly to publishers, although they are not listed among the initial holders of the reproduction right under Article 2 of the Infosoc Directive? Now the European Copyright Society, as a group of academics concerned about the copyright reforms envisaged in the European Union as well as by the interpretation and development of the law by the CJEU, has shared its view on this matter of principle: And its ALL HERE!

Piracy is still a big issue in New Zealand, but the recorded music, film and TV industries say the process to hold infringers accountable is too lengthy and too costly. Just one complaint has been laid, and upheld with the Copyright Tribunal so far this year, compared with 4 last year and 18 in 2013. To successfully complete a complaint against someone allegedly illegally downloading, rights holders have to identify the illegal downloader and file a notice with their Internet Service Provider (ISP). The ISP then passes the notice to the account holder with each notice costing $25. Three notices are required within a 12-months before a complaint can be laid with the tribunal and pay a $200 fee. It's all too complex and too expensive say content owners.

WORDS - they are important - we all know that: Now TorrentFreak has published an interesting opinion piece from Rick Falkvinge (a founder of Sweden's Pirate Party) on how words are used in the debate about the remit and reach of copyright: One mistake that geeks and techies often make, but PR professionals and lobbyists never make, is the observation that words don’t just have a precise meaning – they also have a positive or negative chime to them. Therefore, lobbyists try very hard to establish a language where everything they want is described in words with a positive chime." and Rick makes the point "This is why I insist on calling governmentally-granted private monopolies that interfere with property rights “industrial protectionism” - this and and much more here.

And finally, what is said to be the USA's largest illegal music file-sharing site, Sharebeast.com, has been seized and shut down by the Federal Bureau of Investigation (FBI). A US Department of Justice (DOJ) domain seizure notice first appeared on Sharebeast.com on Friday September 11th. Visitors to the domain arwew now confronted by a notice which states that the FBI has taken control of the site 'pursuant to a seizure warrant issued by a United States District Court'. Sharebeast's related sites such as mp3pet.com and albumjams.com also display the notice. More on MBW here.

The CopyKat - DMCA takedowns: a real growth industry

Following on from our last start of the year CopyKat where we highlighted the 'top ten' domains subjected to DMCA Piracy Takedowns in 2014, those clever bods at TorrentFreak have worked out that Google handled 345 million copyright takedowns in 2014 - a 75% year-on-year jump, and exponentially more than a few years ago, as the likes of the RIAA, NBC Universal and Microsoft began to start request thousands and then millions of takedowns. UK recorded music industry group BPI was the top "link-killer", handing in some 60 million complaints about links.
.

Herr Günther Oettinger

In a letter to the European Commission's digital commissioner Günther Oettinger, the European Copyright Society (ECS), the academic think tank on copyright has said "actual Union-wide unification of copyright" as opposed to simply further harmonising the existing EU copyright regime would have "several major advantages" saying "While copyright unification may be considered undesirable, or perhaps too drastic, by certain stakeholders and national legislatures, this is in our opinion the only way a fully functioning digital single market for copyright-based goods and services can ultimately be achieved. It is in fact the logical next step for the EU legislature to take in this field" and "A European copyright law would establish a truly unified legal framework, replacing the multitude of often opaque and sometimes conflicting national rules that presently exists. It would have instant Union-wide effect, thereby creating a single market for copyrights and related rights, both online and offline" and "The Members of the European Copyright Society are convinced that the time is now ripe to start work on a European Copyright Law that would apply directly and uniformly
across the Union.". Oettinger had previously expressed his preference for "uniform rules" on copyright to apply across the European Union.

The EFF report that the Ford Motor Company has recently sued Autel, a manufacturer of third-party diagnostics for automobiles, for creating a diagnostic tool that includes a list of Ford car parts and their specifications. Ford claims that it owns a copyright on this list of parts, the "FFData file," and thus can keep competitors from including it in their diagnostic tools. It also claims that Autel violated the anti-circumvention provisions of the Digital Millennium Copyright Act by writing a program to defeat the "encryption technology and obfuscation" that Ford used to make the file difficult to read. There are also Trade Mark claims against Autel, claims the Autel misappropriated Ford's trade secrets and that Autel used unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce, in violation of Michigan’s Uniform Trade Practices Act (the action was filed in the District Court for the Eastern District of Michigan, Southern Division).  The complaint can be found here.  

Rather annoyingly (albeit in the context of  the CopyKat's nosey nose) it seems as if MGM is dropping its lawsuit against Universal, endings its claim that U’s plans for a spy film called “Section 6″ was a copy of the James Bond franchise. Attorneys for the studios, as well as for the “Section 6″ screenwriter Aaron Berg, filed a stipulation for dismissal in U.S. District Court in Los Angeles on Wednesday. But the dismissal is without prejudice — meaning that similar claims could be filed again. Variety reports that details of the settlement were not disclosed, but attorneys issued a statement that read, “The parties have resolved the matter to their satisfaction” and Variety added  that there has been speculation that the settlement includes a detailed road map of what can and cannot be used in the movie, so as to not infringe on the Bond franchise.

And Universal Music have filed a lawsuit against a group of companies including the Centric Group and Keefe Group who are allegedly selling "care packages" that family members and friends can send to prison inmates. Why the complaint? well amongst the items being sent to prisoners, according to a complaint filed in California federal court, are mixtapes featuring performances by artists like James Brown, Eminem, Marvin Gaye and Stevie Wonder. 

Finally today, Billboard reports that Senator Patrick Leahy (D-Vt.) and several of his fellow Democrats have reintroduced a bill that would close a loophole in the U.S. Copyright Act that prevents a surviving same-sex spouse from content ownership if they reside in a state that does not recognize gay marriages. It seems that in its current form, the Copyright Act only allows rights to revert to a widow or widower if they live in a state where gay marriages are legal. That means if an artist, musician or writer gets married in Iowa, which has marriage equality, and then moves to Texas, which does not, their legal spouse won't retain that copyrighted material when he or she dies.

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.