Newsflash - Murphy's law to be tested again

Will Swansea pubs face a penalty?

It seems like the Premier League is launching at least 100 new actions against publicans who use foreign decoder cards to show live Premier League football matches in their pubs. BBC Wales reported that pubs in Cardiff and Swansea, suspected of showing Premier League football matches illegally using foreign satellites, face prosecution after the Premier League's private investigation firm visited nearly 200 pubs in south Wales in the last four months and the BBC say the first action for copyright infringement will be against The Rhyddings Hotel in Brynmill, Swansea, shortly. The pubs have subscriptions with foreign channels and show 15:00 GMT Saturday Premier League kick-offs live to their customers. 

Dan Johnson, the Premier League's director of communications, told the BBC: "BT Sport and Sky Sports invest huge amounts of money in the Premier League and that then is in turn invested by the clubs in new stadia, developing players, acquiring players, the whole range of things that make Premier League football so popular" adding "So anything that damages the ability of broadcasters to invest in that has the potential to damage the ability of the clubs to invest in that" and "With the advent of Cardiff and Swansea being in the Premier League clearly the interest in Premier League football has gone through the roof in south Wales.".

Previous efforts to bring pubs to court resulted in a partial victory for Portsmouth pub landlady Karen Murphy who used a subscription to the Greek Nova service to show live Premiership games. Ms Murphy was convicted at Portsmouth Magistrates Court of "dishonestly" receiving a programme "with intent to avoid payment of any charge applicable to the reception of the programme". The conviction under section 297(1) of the Copyright, Design and Patents Act 1988 was upheld by Portsmouth Crown Court. The Court of Justice of the European Union held that national laws that prohibit the import, sale or use of foreign decoder cards were contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums - and also that football matches did not fall under the protection of an author's own "intellectual creation" as works. So Ms Murphy herself could use the Greek service and her criminal conviction was overturned by the High Court.

But neither CJEU nor the High Court directly resolved the wider issue of copyright infringement in those elements of the matches that could be protected by the Premier League - logos and graphics, the the league's anthem and pre-recorded and edited short films from earlier matches used in live broadcasts - and the CJEU noted that when these were shown in public - and the transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive - the the authorisation of the author of the works is necessary, because when a pub transmits those works to the customers present on the premises the works are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works.

http://www.bbc.co.uk/news/uk-wales-25849670 

More on Murphy v MPS here and  joined cases 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 

North of the border - a Scottish perspective here

The CopyKat - hoping to find a new public

It seems that 84% of all the content Spanish internet users consumed in 2013 was - well - illegal. The statistics come from a new report from a coalition of music, film, publishing and gaming firms who will no doubt be looking for the Spanish government to further step up its anti-piracy efforts. With that in mind, the Reports says that 28% of surveyed Spanish web users admitted to illegally downloading music on a regular basis, while over 40% access films illegally. Spain’s Ministry Of Culture played down Report saying their report was just a “rough opinion study commissioned by interested parties”.

In Saudi Arabia Arab News reports that the Ministry of Culture and Information has closed down 72 shops in Riyadh for copyrights violations of video games, movies and selling unlicensed software, local media reported. Ali Al-Bishi, head of the Copyrights Department in the ministry said that inspection teams had discovered instances of violation of copyrights and sent orders to close down 72 shops  periods ranging from seven to sixty days. The process authorizes a copyright violations committee to impose fines ranging from a minimum of SR7,000 (£1,115) to a maximum of SR50,000 (£8,000). Decisions can also include compensation for infringement, permanently closing down store and 'naming and shaming'. 

Out in the field:  a new public?

Gizmodo tell us that "the US Copyright Office recently proposed a seemingly small addition to copyright law that bears some huge implications. It wants to enable copyright holders to protect unauthorised versions of their work from hyperlinks. You read that right: It could soon be illegal simply to link to certain content." That set their comments section on fire with one saying "Aren't hyperlinks the entire point of the internet?" whilst another mooted the Congress would see sense despite the lobbying efforts of the MPAA and the RIAA on behalf of the film and recorded music sectors adding "Hyperlinks are just a means of directing someone to a work. There is no copying and no supply of a copy. Before the Internet, you could tell someone where to go to find an infringing book or album or painting and the mere act of telling them wouldn't be copyright infringement. Hyperlinks do exactly that, albeit more efficiently". Readers will remember the recent Court of Justice of the European Union decision in  Svennson that held that the provision on a website of clickable links to works protected by copyright and  freely accessible on the ‘original’ website, constitutes an act of “communication to the public” as meant in article 3(1) of the Copyright Directive BUT to infringe, the communication must be directed at a “new public,” meaning a public that was not taken into account by the copyright owners when they authorized the initial communication to the public - so when providing hyperlinks to freely accessible (digital) works on a website, no permission from the copyright owners is required.

Party in a park - another new public?

I was pondering how an analogy to Svensson might be applied to that thorny issue of Sky TV's lucrative live transmissions of Premiership football in the United Kingdom  - and any possible ramifications on the decision in the Karen Murphy case which also went all the way to the CJEU andthen back to the Hugh Court and Court of Appeal, and  which found that Ms Murpy could use a Greek Nova decoder card herself to watch live football - but it's debatable if this can extend to public showings in her public house. Now then, is that because this is a communication to a 'new public' ?

Back in October 2011 I mused thus: Copyright MIGHT protect the FAPL though - for the protected elements of any programme: I am not convinced Karen Murphy is safe to show the NOVA feed in public as the ECJ said that this is communicating the public and a pub screening would be an unlawful, profit-making communication to the public of copyright works it would not have been taken into account or considered by the authors of the protected works. She can own the decoder and buy the NOVA service for her private use. 

One public is behind this goal

But where are we now? The Premiership (FAPL) make their content available in the UK via Sky as well as making it available live via other broadcasters elsewhere in the EU, and the content is therefor available to all Europeans. So who might a new audience (a new public) be? And why should Karen Murphy's customers be included (or excluded)? Remember the CJEU said this when applying competition law "A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law": Surely the public FAPL must had in mind is the whole of Europe. Now, unlike the material and content in Svennson, Sky's transmissions are protected by technology - as are most (all?) of the other European broadcasters carrying live Premiership football, and so decoders and decoder cards are needed: but does this matter? Ms Murphy did have a 'paid for' decoder card for her pub in Portsmouth - just one from Nova in Greece - not Sky in the UK: So, surely (and please DO shoot me down) it's arguable that the FAPL must accept that by allowing the signal to go out live anywhere in the EU, pan-European stylee, means that neither the Sky Audience nor the Nova audience can then be a 'new public' - because they are one public. One public, which comprises all (football loving) Europeans (with decoders).  With at least 100 British pubs using foriegn decoders to show live Premiership football  facing actions by FAPL, it's still an important question - and this blogger wonders where this one will go. And let's not forget Eleonora's very relevant December 2012 post on the Court of Appeal's musings in particular on the S72(1) defence on the IPKat - it's well worth a re-read and can be found here as is the paper on Communicating to the Public by Enrico Bonadio and Mauro Santo.

Back in January four people in the USA were charged in connection with pirate apps developed for Android devices. Now all four of these defendants have pleaded guilty to charges of conspiracy to commit criminal copyright infringement.

And finally, Google has called for content licensing in the European Union to be simplified: In its submission to the European Commission's public consultation on the review of copyright rules Google says: "We believe the [European] Commission should consider appropriate means of ensuring that rights that cover a single act of exploitation are licensed together" Google said in the response to the Commission's review of the EU copyright framework; "The lack of a single license for a single act of exploitation is an historical remnant, an attempt to use approaches to licensing analog products for digital ones" and has said that it is wrong that businesses should have to pay separate royalties to cover each of the "multiple rights" protected by copyright when making single use of that material - singling out digital music licensing and the role of collection societies for particular criticism saying music licensing was outdated and "structured by right holders as if a digital act of exploitation is a mixture of pressing a compact disc implicating the mechanical reproduction right and broadcasting implicating the performing rights/communication to the public right" and "In territories where different collecting societies administer each right, each society wants to be paid for the same activity by claiming that separate rights are implicated, including rights that have no independent economic value" adding "A collecting society in charge of managing the right of making available might claim royalties for the act of simply loading files to a server connected to the internet, even if no one ever accesses those files."  More on Out-law here.

News from Scotland

A Glasgow bar has become the first in Scotland to be hit with a court penalty for showing English Premiership football matches via the unauthorised use of foreign broadcasts. The Football Association Premier League (FAPL) have issued a release saying that the Merchants Quay bar in Paisley Road faces having to pay the FAPL up to £6,000 for copyright infringement in damages and costs awarded in the Court of Session - although the final amount has yet to be determined. The FAPL says the judgement follows an 18-month long crackdown in Scotland against bars using foreign feeds to show matches from the top flight of English football. The Premier League says it has sent 31 'letters before action' to pubs in Scotland. It says that in the majority of cases the pubs  simply agreed to cease showing the matches. In five  cases the FAPL took legal action against pubs and interim interdicts were awarded, preventing unauthorised broadcasts until a court hearing.

The FAPL have pledged further strong action as it undertakes a programme to prevent 'the undermining of its deal with Sky Sports and BT Sport for coverage of Premier League matches'. Readers of this Blog will remember the case involving Portsmouth landlady Karen Murphy which established that individuals living in the UK are allowed to use digiboxes which provide authorised services from other EU member states to watch Premier League football in the UK However this case did not extent such a right to commercial premises.

A Premier League spokesman said: "The courts granted the judgment following failure by the defendants to engage in the case, despite several attempts to contact the publican."

And also from Scotland - and the Scottish Law Society - who have said that proposed EU legislation allowing holiday makers travelling in Europe to access online content, such as digital film and TV services is 'too timid'. Whilst the Society has welcomed the European Commission’s proposed legislation, which would allow EU residents travelling within the EU to access digital content services which they have paid for in their home country, they have called for the legislation on cross-border portability of digital content services to be extended to cover digital subscriptions purchased by EU residents anywhere in the EU.

Jim McLean, convener of the Law Society’s Intellectual Property committee, said: “We’re delighted that the European Commission is looking at ways to improve online content services for consumers and welcome the proposed regulation which will allow EU residents to access digital services such as Netflix, Sky and Amazon Prime, when travelling within the EU on holiday or business. But he added: “However we believe the proposed legislation is too timid and should also cover online content services purchased or obtained by a subscriber within the EU, even if that is outside of their home country" and “This would align with the Commission’s strategy to allow for wider online access to works by users across the EU and would be more straightforward for both the consumers and the providers.”

http://www.heraldscotland.com/news/14278737.Glasgow_pub__quot_first_in_Scotland_quot__to_receive_penalty_for_Premier_League_copyright_breach/

Joined cases 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 

More on the Karen Murphy case here. 

http://www.lawscot.org.uk/news/2016/02/eu-proposals-for-tv,-music-and-sport-subscriptions-too-timid-says-law-society/

Copyright vs Competition law - a new dawn in European broadcasting??

I early 2007 I spotted what I thought was a very interesting case called MPS v Murphy and blogged about this in March on my Music Law Updates website. The case was (and still is) of great interest to UK publicans and I even got “flamed” in a pub trade weekly magazine’s chat room for daring to suggest anything but the prevailing view, which was that in the UK only Sky TV had the right to show live English Premiership football. I pointed out that whilst that may well be correct as far as copyright and licensing goes, it may not be so right when looking at the general concept of the ‘free movement’ of goods and services within the European Union.

The case concerns South Coast publican Karen Murphy who referred to pay £750 each year for a Nova decoder to get Greek satellite programmes that included live English Premiership football, rather than the reported minimum £4,000 Sky would have charged for live football. She was convicted under s297(1) of the Copyright Designs & Patents Act 1988 for dishonestly receiving a programme with intent to avoid payment. Murphy appealed her conviction to the Portsmouth Crown Court where the conviction was upheld and then onwards to the Divisional Court, who referred the whole matter to the ECJ.

The economics of this are important: BSkyB and Setanta Sports were then reportedly paying £1.7 billion to hold the exclusive rights to screen live matches to the English Premiership in Britain for the next three years. Broadcasters in 208 other countries had recently doubled their payments to secure English premiership rights to a combined £625 million - and of course Sky recoups their investment by charging both consumers for home use and pubs and clubs a fee to publicly show Sky TV in a place of business. Back in 2007 it was said that a public house would often pay upwards of £1,000 per month for Sky Television and whilst this includes Sky Sports and Sky Sports News it would not include all live premiership matches. An additional payment is needed for the full service.]

Now the European Court of Justice is set to rule on the 4th October 2011 in the case of Murphy and the joined case of FA Premier League and Others v QC Leisure following a ‘pro-Murphy’ opinion from Advocate General Juliane Kokott in February this year. In reconciling intellectual property rights with the free movement of services, the judgment has the potential to transform broadcasting in the EU.

On the 11th October City University will be host a panel on this hosted by our very own Jeremy Phillips, and featuring Lorna Woods, Professor at the City Law School, Dan Wilsher, Senior Lecturer at the City Law School and Jonathan Griffiths, Senior Lecturer at the QMUL School of Law. Full details can be found using the link below:

Football, Broadcasting and the Internal Market: Is a common audio-visual space in sight?

http://www.city.ac.uk/events/2011/oct/football,-broadcasting-and-the-internal-market-is-a-common-audio-visual-space-in-sight/_nocache?dm_t=0,0,0,0,0

Background here: http://www.musiclawupdates.com/07Marchlawupdates.htm

Murphy’s law of licensing?

I have been thinking about the practical ramifications of ECJ’s decision in MPS v Murphy and FAPL v QC Leisure (see previous posts) and the impact of the over arching principle that EU competition law should ‘trump’ copyright. I am not sure the decision should have come as that much of a surprise – all Member States are part of a ‘common market’ and the principle of the free movement of people, labour, capital, goods and services is at the heart of that. The ‘Television Without Frontiers' Directive provides for this in the audio visual sphere, and, with certain riders, looks for the free movement of television programmes within the internal market. For those nor familiar with the background to this case I have put some very brief reference materials at the foot of this blog.

So where do rights owners and broadcasters go from here?

- In the long term it may be prudent to treat the EU as ‘one’ territory. It would seem odd to licence audio and audio visual rights for ‘Utah’ or ‘Salt Lake City’ in the USA or for just ‘Essex’ or ‘Colchester’ in the UK – but not impossible. But if Europe is one market with one currency (as it almost is at the moment) then the concept of inter-EU territorial licensing on a country by country may fade.

- That doesn’t mean that Coditel is necessarily bad law. But it is bad law in certain circumstances and might well be decided differently now.

- If a licensor licences say a film for a German TV station then that Licensor have to accept that if anyone in Europe wishes to access that service – whether its free to air or by paying a relevant subscription fee, the they can so do from anywhere within the EU, if it is technically possible – and that will be legal.

- Licensors cannot use contractual terms to restrict inter-EU access, whether such terms restrict access to services or to physical goods such as decoders. With decoders it seems that a system of exclusive licences is contrary to Article 101(1) of the Treaty of Functioning of the the European Union if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts within the EU but outside the Member State for which the licence is granted. These agreements are restrictive agreements contrary to 101(1).

- There can only be ‘one’ price structure for Europe from a pay TV provider. So if say a customer in Spain wishes to watch Sky TV then they can – provided they pay the relevant subscription fee – and that fee must be the same for all EU consumers.

- Territorial partitioning and in particular artificial price differences between the partitioned national markets are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.

- The ECJ said that “The licence agreements must not prohibit the broadcasters from effecting any cross-border provision of services that relates to the sporting events concerned, because such an agreement would enable each broadcaster to be granted absolute territorial exclusivity in the area covered by its licence, would therefore eliminate all competition between broadcasters in the field of those services and would thus partition the national markets in accordance with national borders.” But this doesn’t matter if there is only one broadcaster by satellite – more on that later!

- If a EU customer wishes to watch a Greek service, whatever it contains and wherever they are in the EU, then they can provided again they pay the relevant subscription fee. The decoder is not illicit! A service cannot discriminate on price across Europe – competing services of course can offer different prices – even for the same content.

- As an aside, in my opinion some of the earlier judgments were just plain wrong on whether the Nova signal containing English Premiership football was from the United Kingdom or Greece. It was a Greek service and a Greek programme – not only as a fact as it was uploaded from Greece, but it was a licensed service – licensed by the FAPL, in effect legally licensed by the Claimants themselves.

- And talking of asides, don’t get too waylaid by whether or not there is a ‘copyright’ in a football match. This is all about competition law and the common market. That said, whatever we think about the definition of protected works in the UK, and even if Infopaq means that its all to do with an author’s intellectual creation now, live sport cannot be a ‘work’ or qualify for copyright protection as a work. That is the law now and even accepting that football can be like ballet, I doubt if even Infopaq can be stretched to cover live sport. That said, at one recent seminar on Murphy a very amusing quip came from the audience that surely a ‘fixed’ cricket match must have a script (hehe!). And even if logos and national anthems can be protected by copyright law, does it matter? Not really, no.

- Copyright MIGHT protect the FAPL though - for the protected elements of any programme: I am not convinced Karen Murphy is safe to show the NOVA feed in public as the ECJ said that this is communicating the public and a pub screening would be an unlawful, profit-making communication to the public of copyright works it would not have been taken into account or considered by the authors of the protected works. She can own the decoder and buy the NOVA service for her private use. But enough of copyright, We need to look at the bigger picture!

- I am not sure Sky have been damaged at all, except perhaps in the short term. In fact they may be quite happy! Sky have the potential to do rather well out of this judgment in the long term. Firstly they can insist that all those expats Brits in Spain and Portugal PAY for their decoders and PAY for the Sky service – and they might well end up as the sole European FAPL licensee – for more on that see below.

- So what should the FAPL do? Well in the short term they may well have to re-negotiate their existing licences with Sky and other broadcasters across Europe as these agreements have been ruled anti-competitive if they have the effect of partitioning the internal market: Clauses contained in those agreements which relate to territorial exclusivity cannot now be enforced or relied upon.

- Exclusive broadcast licences based on a language (German, Greek, English) remain a possibility as does the possibility of limiting a broadcast licence to non-commercial (eg private home) use only. Whether the latter is practical remains to be seen.

- But laws meant to regulate a market often end up fitting the ‘law of unintended consequences’ model. Whilst some commentators see the decision as a win for the consumer, resulting in more competition which usually results in more choice and cheaper prices for consumers, I am not so sure.

- As the UK is by far the most important economic driver, surely the FAPL should / could licence JUST Sky – who can then offer the (same priced) service to consumers across Europe – setting whatever price they feel consumers can bear as a pan-European monopoly. The ECJ accepted that “European Union competition law does not, in principle, preclude a right holder from granting to a sole licensee the exclusive right to broadcast protected subject-matter by satellite, during a specified period, from a single Member State of broadcast or from a number of Member States of broadcast”. And I’m not sure who else could compete with Sky who have very deep pockets for English football rights! But I have no idea what EU regulators might think of this!!

- A single license would also allow the FAPL to control the broadcast of live fooball matches in England - a stated core concern as the FAPL need to protect the revenues from the paying audience for live football matches. And they need a new system and it may be one where nobody in Europe gets to see live matches from the Premiership!

- It won’t stop at TV! Neelie Kroes, previously the EU Competition Commissioner and now the Commissioner for the Digital Agenda said this about music and entertainment: “Too many barriers still block the free flow of online services and entertainment across national borders. The Digital Agenda will update EU Single Market rules for the digital era. The aims are to boost the music download business, establish a single area for online payments, and further protect EU consumers in cyberspace. She told the Guardian “"If I can buy a music CD online from a company in the Netherlands and have it posted to me here in Belgium, why can't I buy a digital download from the same company? If I can watch my local team's football matches using online pay-per-view in one member state, why not in 27? This situation does not make much sense to the man on the street. To be honest, it is not a situation that makes much sense to me. And we need to fix it".

- Unless a valid justification for partitioning the single market can be found, new business models will have to be adopted in Europe and many existing licensing arrangements may simply be held invalid as they be contrary to European competition law. I suspect this applies in particular to the pan-European satellite broadcasts and the internet. Is there any future in pan-European internet geo-filtering now? I suspect the answer is 'no'.

- The full effect of the case will become clear when the High Court gives its judgment applying the ECJ's ruling to the facts of the case.

- Of course Greece may have the final word if the EU doesn't sort out the current debt crisis ...... !!!


Tuesday 25 October 2011

BLACA & the BCC have a joint meeting on Tuesday 25th October looking at the communication to the public right in the light of the ECJ decision. This will be a panel discussion led by Professor Paul Torremans with Ted Shapiro (Senior Vice President, General Counsel Motion Picture Association, Brussels) and Jenine Hulsmann (Partner, Clifford Chance) contributing as panellists: VENUE: Reed Smith, The Broadgate Tower 20 Primrose Street EC2A 2RS: 17.45 signing in - 18.00-20.00 pm panel discussion. If you wish to attend you MUST register in advance by emailing emma.rumens@blplaw.com or by telephone on: 020 3400 4983.



Karen Murphy v Media Protection Services Ltd / Football Association Premier League Ltd v QC Leisure and others Joined Cases C-403/08 and 429/08 http://www.bailii.org/eu/cases/EUECJ/2011/C42908.html

Directive 89/552/EEC - "Television Without Frontiers"
The Directive aims are to ensure the free movement of broadcasting services within the internal market and at the same time to preserve certain public interest objectives, such as cultural diversity, the right of reply, consumer protection and the protection of minors. It is also intended to promote the distribution and production of European audiovisual programmes, for example by ensuring that they are given a majority position in television channels' programme schedules. The Directive establishes the principle that Member States must ensure freedom of reception and that they may not restrict retransmission on their territory of television programmes from other Member States. They may, however, suspend retransmission of television programmes which infringe the Directive's provisions on the protection of minors.

C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16
The Court emphasised that the author’s right to authorise or prohibit reproduction applies to a "work", i.e. the author’s own intellectual creation - "the expression of the intellectual creation of their author"

Coditel SA and others v Ciné-Vog Films SA (No 1) [1980] ECR 881 62/79 and Coditel SA and others v Ciné-Vog Films SA (No 2) 262/81 [1982] ECR 3381
This case established that exclusive national licences of broadcasting or cable rights in films were not of themselves inimical to EU rules on free movement and anti-competitive agreements with the ECJ saying “The provisions of the Treaty relating to the freedom to provide services do not preclude an assignee of the performing rights in a cinematographic film in a Member state from relying upon his right to prohibit the exhibition of the film in that State without his authority, by means of a cable diffusion if the film so exhibited is picked up and transmitted after being broadcast in another Member State by a third party with the consent of the original copyright owner”

Murphy v MPS - more on 'communication to the public'

Our good friend Enrico Bonadio (City University) has sent us a link with a simple 'one click' where you can download a paper by Enrico and Mauro Santo (M&R Europe) with comment on the recent ECJ decision in MPS v Murphy - the case that looked at the legality of the use of a Greek satellite decoder and card by a pub landlady in the UK to access live Premier League football for her customers. This article has particular reference to the "communication to the public finding" under article 3(1) of the Information Society Directive, and unsurprisingly touches on the Rafael Hoteles case where the ECJ gave a wide interpretation to communication to the public. The article has been published in the current issue of the European Intellectual Property Review.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021353

Football Association Premier League v QC Leisure C403-08 / Karen Murphy v Media Protection Services Ltd C429-08.

SGAE v Rafael Hoteles C306-05

Red card for soccer decoder card search warrants

The Queen on behalf of Vuciterni and another v Brent Magistrates' Court and another [2012] EWHC 2140 (Admin), 25 July 2012, concerned a prosecution brought against the importer of decoder cards from Albania, where the cards had been supplied by Tring TV, which held the exclusive licence to broadcast Premier League football matches there.

In March last year, Brent Trading Standards officers applied to a District Judge and obtained search warrants in relation to the sale of these decoders, but those search warrants have now been quashed. Since Albania is not a Member State of the European Union, that the ruling of the Court of Justice of the European Union in Joined Cases C-403/08 and C-429/08 Football Association Premier League Ltd and others v QC Leisure and others; Karen Murphy v Media Protection Services Ltd (noted on the 1709 Blog here and considered further here) did not apply.  However, the Divisional Court, England and Wales, relied on that decision in holding that the decoder cards were not “unauthorised decoders” for the purposes of section 297A of the Copyright, Designs and Patents Act 1988 Act. Nor were they “illicit devices” under the Conditional Access Directive.

The Divisional Court made it plain that it was not happy about the mechanics of obtaining the search warrants, or about the fact that search warrants were being sought in support of a prosecution that might leave the accused facing ten years' imprisonment but where it was by no means clear that the sale of the decoder cards was even a criminal offence.  In particular, the Brent Trading Standards officers had failed to disclose Advocate General Kolkott's Opinion in Murphy (noted on the 1709 Blog here), this Opinion being subsequently adopted by the Court of Justice.  This, said Lord Justice Davis, with whom Mr Justice Irwin agreed, constituted a significant and material non-disclosure to the District Judge, on which basis the decision to grant the warrants should be quashed.

Thank you Chris Stothers (Arnold & Porter), for prompting this post.

Is it time for a super society?

Some of the criticsms levelled at the music industry in the digital age have been those directed at outdated and ineffective licensing models - especially where internet start ups are looking at a global market, whereas as rights owners, often territorially limited collection societies, are mandated to licence within their national borders only. Early entrants in the music sphere spoke of the need to negotiate with hundreds of different organisations each offering 'blanket' licences for just one country - to run a global music streaming service. It took Spotify two years to negotiate basic clearances - as the pirates made merry!


The problem has not escaped the European Commission  who are keen to promote (at least) pan-European licensing regimes: Digital Commissioner Neelie Kroes recently said Digitisation has fundamentally changed content industries, but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. The price, both in pounds and frustration, is all too real, as creators are stifled and consumers are left empty-handed. It is time for this dysfunction to end. We need a simple, consumer-friendly legal framework for making digital content available across borders in the EU". 


Problems with digital licensing have also not escaped the attention of the UK government, currently advancing plans for the 'Digital Rights Exchange' proposed in the Hargreaves Report. But in my own opinion even a pan-European licensing regime is of little real use or relevance in the digital age. Surely a UK 'licence' for the digital age is becoming more and more redundant! 


To solve Neelie Kroes' concerns, surely just one European society for, say, music might well be an effective solution - at least for potential licensees - as a 'one stop shop': BUT, a sole player might not be so good for content owners such as songwriters (who can presently shop around the various music collection societies such as PRS, GEMA and SACEM), or for the board members, or the staff at individual existing societies - although at least some of the latter could and would (I imagine) be redeployed.  And I have some real concerns on behalf of the end users - customers. Actually, it will be the board members who offer the most resistance as they see their cosseted positions at certain societies threatened by  the threat of closure, merger or takeover; but the conundrum that remains is one of competition law.


In 2005 when this who area was looked at, The EC's three solutions were (a) to do nothing (b) allow the existing (then 24) societies to offer pan-European licences in competition with each other (prompting speculation that this will just encourage a 'race to the bottom' on licensing tariffs or (c) allow rights holders to choose one EU online rights manager. At the moment the EC is waiting for the Court of Justice to determine the way forward in the CISAC case: where it stands now is that there is an order in place prohibiting the 24 European collecting societies from restricting competition by limiting their ability to offer their services to authors and commercial users outside their domestic territory BUT the decision allowed collecting societies to maintain their current system of bi-lateral agreements and to keep their right to set levels of royalty payments due within their domestic territory. 


Why bother with all that - lets go for efficiency! Lets have just the one society! A super society! Digital start ups - especially offering content - want access to ALL content in their sector (whether its films, music, books, news content, whatever) and almost always want to be able to offer and sell that content Worldwide. Whilst  I am sure that the EU would need to consider consumers as a sole European collection society  would be a monopoly - and a monopoly based on the 'monopoly' of music copyrights (if you want Kylie's songs - you can only come to us)  surely one society is a potential solution? Just one collection society for recorded music and just one for songs in Europe - or even just one covering all music rights - at least the EC could potentially regulate this, possibly in the same way the Copyright Tribunal  reviews licensing schemes in the United Kingdom. But globally, now that is a bit more tricky  .....


Europe good - global better? Surely any solution has got be be global? If we have leant nothing else in the last 10 years, we have learnt that this is a 'must have' generation of consumers - if they can't get content legally - they will get it illegally. 


The Universal Music Group's proposed acquisition of EMI's recorded music division from Citigroup has again focussed thoughts on global licensing, with some supporters of the merger pointing to the fact that with a near 50% combined market share, a combined Universal-EMI could be an effective one stop shop on its own for licensing recorded music content, There is the counter argument of course - a combined UMG-EMI (or indeed in the publishing world a combined SonyATV-EMI music publishing)  could equally block any new entrant if they so wanted which must surely be an issue worrying competition regulators. 


One problem is that the music industry's record on anti-competitive (antitrust) behaviour is not wonderful,  not least because of that nagging antitrust case called Starr v Sony  which I am sure the labels would like everyone (including the US courts to forget) about; it's all about the major labels madcap digital start-ups all those years ago called PressPlay and MusicNet. On top of that there is the rather public 2002 settlement by the majors and three of the biggest high street retailers in the USA for price fixing of CDs - and two separate 2005 and 2007 settlements for payola. That said, the recorded music industry is a significantly different business than it was ten years ago – and whatever your views are on digital piracy – it cannot be ignored – and nor can the rise of new independent distribution systems such as Apple’s iTunes, and streaming services such as Spotify.  But whether that justifies the creation of a dominant player with a possible 50% market share is debatable. But at least the concentration of rights into one 'manager' makes licensing easier - and payment possible - doesn't it ..... ?

But that got me thinking, and as I am very uneasy about having just two 'super-majors' in the music industry, surely to prevent further consolidation in the recorded music sector and yet allow for effective licensing, it would be better for Sony, EMI, Warners and UMG along with the independent record sector (represented perhaps by Merlin) to form their own 'super society' to collectively licence ALL recorded music on a global basis. Then potential licensees could have their much wanted 'one stop shop' - and consumers would have legal access to to the World's music. Perfect eh?


Except it would be a super monopoly ....... so I am back to the problem the EC faces trying to balance the need to have effective licensing and the need to have a competitive market place (and we know post MPS v Murphy competition law trumps copyright!). But at least within Europe there is at least the potential for a mechanism to regulate such a monopoly - even if it were a European wide Digital Rights Exchange. But with a global super society .......  who would be the 'World Police'?


Anyway, thoughtful comments would be MOST WELCOME ......



The CISAC case: COMP/C2/38.698 CISAC and CISAC v. Commission; Case T442/08


Starr v. Sony BMG Music Entertainment, 592 F. 3d 314 - Court of Appeals, 2nd Circuit 2010


Karen Murphy v Media Production Services / Football Association Premier League Ltd v QC Leisure and others  joined cases C-403/08 and 429/08

Footie and a beer on a Saturday afternoon: soon to be a forgotten pleasure?

With some names changed or concealed to avoid any problems, here's a little tale that has been sent to us for publication:

I was encouraged to get in touch with you by my boss who is an avid reader of your blog. I work for him at the Black Bull Pub in Green Pasture, Bullhampton, England. A smaller part of our business revolves around showing English Premier League football games, and last year we took the step into the big grey area of broadcasting 3 pm Saturday games, which you may know are not shown on British TV due to a ruling some years ago to keep attendance up at football grounds.

We were put in touch with a company (by a fellow landlord already using their service) that provided foreign satellites for the showing of 3pm football games coming in from around Europe. You may remember this case from 2012 in which a landlady won her court case against Sky for using a decoder [on the Karen Murphy case and its aftermath see the 1709 Blog here; see also the BBC here]. This pub was supported in its legal battle by the company which provided our satellites.

The key piece of information from the BBC article states that: 'the Premier League said it still had the right "to prevent the unauthorised use of our copyrights"'.

Will this soon be the only sort of football
you can enjoy in an English pub?

From the beginning on this season our provider has disappeared, along with the money we paid for this season. I've been in touch with friends of mine who run a website for pubs to advertise what sports they're showing and they've confirmed that the showing of Premier League 3 pm games has dropped dramatically this season from last. We were also attempting to run a photographic exhibition with a sport photographer friend of ours this season all about the Premier League, but after the Premier League set their agenda for the season (which I believe focused heavily on their copyright) the photographer decided it wouldn't be worth getting involved with the exhibition as he would run the risk of unnecessary complications concerning the copyright of his images.

There are clearly lots of pubs that have now been left in a precarious position. Our businesses began to revolve around a good Saturday trade and it's difficult to assimilate back into a business without that trade. Our landlord friend who suggested the company to us is in real trouble as his is a local pub, and prior to his showing of 3 pm games his business was struggling. His entire trade is based around Saturdays.

From the Premier League's perspective, its priorities involve the protection and exploitation of its copyrights; from the point of view of local pubs and the communities they serve, while the profit motive cannot be eliminated it is only one of a number of factors to take into account, as both pub-going and football-watching practices are subject to stresses from which they may never quite recover.

Readers' thoughts and observations are welcomed.

ECJ upholds AG opinion; no copyright in football matches?

The ECJ judgment in QC Leisure is just in. You can read it in full here.

Press release pasted in full below - comment to follow.

"A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law

The screening in a pub of football-match broadcasts containing protected works requires the authorisation of the author of those works

The Football Association Premier League (‘the FAPL’) runs the Premier League, the leading professional football league competition in England, and markets the television broadcasting rights for Premier League matches. It grants broadcasters, under an open competitive tender procedure, an exclusive live broadcasting right for Premier League matches on a territorial basis. As the territorial basis generally corresponds to a single Member State, television viewers can watch only the matches transmitted by the broadcasters established in the Member State where they reside.

In order to protect such territorial exclusivity and to prevent the public from receiving broadcasts outside the relevant Member State, each broadcaster undertakes, in the licence agreement concluded with the FAPL, to encrypt its satellite signal and to transmit the signal, so encrypted, by satellite solely to subscribers in the territory which it has been awarded. Consequently, the licence agreement prohibits the broadcasters from supplying decoder cards to persons who wish to watch their broadcasts outside the Member State for which the licence is granted.

The disputes giving rise to the present cases concern attempts to circumvent that exclusivity. Certain pubs in the United Kingdom have begun to use foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches. The pubs buy a card and a decoder box from a dealer at prices lower than those of Sky, the holder of the broadcasting rights in the United Kingdom.

Since the FAPL takes the view that such activities undermine the exclusivity of the television broadcasting rights and the value of those rights, it is seeking to bring them to an end by means of legal proceedings. The first case (C-403/08) concerns a civil action brought by the FAPL against pubs that have screened Premier League matches by using Greek decoder cards and against the suppliers of such decoder cards to those pubs. The second case (C-429/08) has arisen from criminal proceedings against Karen Murphy, the landlady of a pub that screened Premier League matches using a Greek decoder card. In those two cases, the High Court of Justice of England and Wales has referred a number of questions concerning the interpretation of European Union law to the Court of Justice.

In its judgment delivered today, the Court of Justice holds that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.

So far as concerns the possibility of justifying that restriction in light of the objective of protecting intellectual property rights, the Court observes that the FAPL cannot claim copyright in the Premier League matches themselves, as those sporting events cannot be considered to be an author’s own intellectual creation and, therefore, to be ‘works’ for the purposes of copyright in the European Union.

Also, even if national law were to confer comparable protection upon sporting events – which would, in principle, be compatible with EU law – a prohibition on using foreign decoder cards would go beyond what is necessary to ensure appropriate remuneration for the holders of the rights concerned.

In this regard, the Court observes, first, that when calculating such appropriate remuneration it is possible to take account of the actual and potential audience both in the Member State of broadcast and in any other Member State where the broadcasts are received, and that it is thus not necessary to limit the free movement of services within the European Union. Second, payment by the television stations of a premium in order to ensure themselves absolute territorial exclusivity goes beyond what is necessary to ensure the right holders appropriate remuneration, because such a practice may result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.

For similar reasons, a system of exclusive licences is also contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.

It is true that European Union competition law does not, in principle, preclude a right holder from granting to a sole licensee the exclusive right to broadcast protected subject-matter by satellite, during a specified period, from a single Member State of broadcast or from a number of Member States of broadcast. However, the licence agreements must not prohibit the broadcasters from effecting any cross-border provision of services that relates to the sporting events concerned, because such an agreement would enable each broadcaster to be granted absolute territorial exclusivity in the area covered by its licence, would therefore eliminate all competition between broadcasters in the field of those services and would thus partition the national markets in accordance with national borders.

Finally, as regards the questions asked concerning the interpretation of the Copyright Directive, the Court notes first of all that only the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics can be regarded as ‘works’ and are therefore protected by copyright. By contrast, the matches themselves are not works enjoying such protection.

That being so, the Court decides that transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive, for which the authorisation of the author of the works is necessary, because when a pub transmits those works to the customers present on the premises the works are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works".

Case update – FAPL v. Luxton

This case update from David Liao

Earlier this month the appeal to The Football Association Premier League Limited v Anthony William Luxton was dismissed. In the latest case against publicans who use foreign decoder cards, the Court maintained the distinction between the lawful enforcement of intellectual property rights from any alleged anti-competitive agreements between FAPL and foreign broadcasters to restrict the supply of foreign commercial cards outside the territory in which that broadcaster operates. 

Background: 
In 2014, summary judgment was awarded against Mr Anthony Luxton, who used a satellite card from a Danish broadcaster to show football matches to customers who frequented his public house in Swansea. Despite Mrs Justice Rose expressing concern that the status quo of territorial protection in relation to broadcast licences appeared to be maintained notwithstanding the previous ruling of the CJEU in Premier League v. QC Leisure, she held that, as QC Leisure had effectively decided the plea in this defence, FAPL had a right to prevent the unauthorised communication of its copyright (see here for previous coverage on the High Court case). 

Court of Appeal:
While the Court did not agree that the QC Leisure case had conclusively decided this case, the decision to dismiss the appeal was based on similar reasoning. Lord Justice Floyd did not agree with Luxton that the proceedings were an illicit attempt by FAPL to prevent the use of foreign decoders cards as they were entitled to prevent a domestic card from being used for commercial purposes (nothing to show FAPL would only enforce if foreign domestic). 

In addition, it was held that use of the foreign domestic card was not a direct consequence of FAPL practices or agreements with foreign broadcasters, and at most it only provided the occasion for such use. Due to this insufficient link between Luxton’s infringement of FAPL’s copyright and the alleged anti-competitive practices the appeal was dismissed. 

http://the1709blog.blogspot.co.uk/2011/10/murphys-law-of-licensing.html

http://the1709blog.blogspot.co.uk/2011/09/copyright-vs-competition-law-new-dawn.html

Football Association Premier League Ltd v QC Leisure; Karen Murphy v Media Protection Service Ltd [C-403/08 and C-429/08]

Decoder cards: the Advocate General’s opinion

In 2006 the customers of a number of English pubs – the Red White and Blue, the Pig & Whistle, Earls, the Crabtree Inn and London House – settled down to watch the footy. Little did they know that this apparently innocent activity was to give rise to a staggering number of complex legal questions. These were referred in the cases FAPL v QC Leisure and Karen Murphy v Media Protection Services. Today Advocate General Kokott has given her opinion. She began by explaining the background:

‘Football Association Premier League … grants its licensees the exclusive right to broadcast and economically exploit the matches within their broadcasting area, generally the country in question. In order to safeguard the exclusive rights of other licensees, they are at the same time required to prevent their broadcasts from being able to be viewed outside the broadcasting area … Undertakings import decoder cards from abroad, in the present cases from Greece and Arab States, into the United Kingdom and offer them to pubs there at more favourable prices than the broadcaster in that State. The FAPL is attempting to stop that practice.’

The Advocate General’s proposed answers to the questions referred are:

1. Question 1 in Case C‑403/08:
Being ‘designed’ or ‘adapted’ within the meaning of Article 2(e) of Directive 98/84/EC means the manufacture or modification of equipment with the intention of providing access to a protected service in an intelligible form without the authorisation of the service provider. Where a conditional access device is made by or with the consent of a service provider and sold subject to a limited authorisation to use the device only to gain access to the protected service in particular circumstances, that device does not therefore become an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84 if it is used to obtain access to that protected service in a place or in a manner or by a person outside the authorisation of the service provider.

2. Question 3 in Case C‑429/08:
Article 3(2) of Directive 98/84 does not preclude a Member State from invoking a provision of national law that prevents use of a conditional access device in the event of breach of contractual agreements concerning the accessibility of programmes in certain Member States, following the provision of false names and/or addresses in the acquisition of the access device, or the use, for commercial purposes, of an access device intended for private or domestic use.

3. Question 4 in Case C‑403/08:
(a) The question whether works have been reproduced in whole or in part must be answered by means of an interpretation of Article 2 of Directive 2001/29/EC.
(b) Acts of reproduction occur where frames of digital video and audio are created within the memory of a decoder, as those frames constitute part of the broadcast author’s own intellectual creation.
(c) The display of a broadcast on a screen also constitutes reproduction.

4. Question 5 in Case C‑403/08:
Transient copies of a work created on a television screen linked to the decoder box have independent economic significance within the meaning of Article 5(1) of Directive 2001/29, whereas transient copies created in a decoder’s memory do not.

5. Question 6 in Case C‑403/08:
A copyright work is not communicated to the public by wire or wireless means, within the meaning of Article 3(1) of Directive 2001/29, where it is received or viewed as part of a satellite broadcast at commercial premises (for example, a bar) or shown at those premises, free of charge, via a single television screen and speakers to members of the public present in those premises.

6. Question 7 in Case C‑403/08:
The right to communicate copyright works by satellite under Article 2 of Directive 93/83/EC includes the right also to receive and watch that broadcast abroad.

7. Questions 6 and 7 in Case C‑429/08 and Questions 7, 8(c) and 9 in Case C‑403/08:
(a) Freedom to provide services under Article 56 TFEU (previously Article 49 EC) precludes provisions which prohibit, on grounds of protection of intellectual property, the use of conditional access devices for encrypted satellite television in a Member State which have been placed on the market in another Member State with the consent of the holder of the rights to the broadcast. It is irrelevant whether such devices were procured and/or enabled in the other Member State by the provision of a false name and false residential address. An individual agreement to use decoder cards only for domestic or private use also does not affect that conclusion.
(b) Freedom to provide services does not preclude national rules which allow the holder of rights to a broadcast to object to its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate to the share of the protected rights to the broadcast.
(c) It is irrelevant for the purposes of the present references for preliminary rulings whether the provision of national law infringes freedom to provide services because it applies to programmes included in a broadcasting service provided from a place in the United Kingdom but not from any other Member State.

8. Question 10 in Case C‑403/08 and Question 8 in Case C‑429/08:
Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, such licence agreements are liable to prevent, restrict or distort competition. They are therefore incompatible with Article 101(1) TFEU; it is not necessary to show that such effects have actually occurred.

Guardian report here.

FT report here.

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