Wednesday, 29 March 2017

GS Media and its implications for the construction of the right of communication to the public within EU copyright architecture: a new article

In its 2016 decision in GS Media, C-160/15 the Court of Justice of the European Union (CJEU) sought to clarify under what conditions the provision of a link to a work protected by copyright made available on a third-party website (where it is freely accessible) without a licence from the relevant rightholder falls within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive.

In its decision the CJEU held that whether linking to unlicensed content falls within or outside the scope of Article 3(1) of the InfoSoc Directive depends – crucially – on whether the link provider has a profit-making intention or knowledge of the unlicensed character of the work linked to.

This new article of mine - which will be published in Common Market Law Review - assesses the implications of the GS Media decision in respect of linking, and - more generally - the construction of the right of communication to the public.

The main conclusion is that GS Media imposes a re-consideration of what amounts to an act of communication to the public. Yet, the forthcoming CJEU decisions in pending references for a preliminary ruling (Filmspeler, C-527/15, and Ziggo, C-601/15) might lead to a relaxation of the concept of 'indispensable intervention', thus broadening the notion of who makes an act of communication to the public.

Ultimately the discussion undertaken in this contribution suggests that the concept of ‘communication to the public’ has been undergoing an evolution. The next frontier for Article 3(1) of the InfoSoc Directive appears to be not just a determination of what amounts to an act of communication to the public, but also who makes an act of communication to the public. The latter in particular is the next question for the CJEU to tackle, and also poses significant – and not entirely worked out – challenges to EU policy- and law-making.

1 comment:

Anonymous said...


Many thanks for your helpful and insightful analysis of this issue. The CJEU is abjectly failing in its role of clarifying poorly drafted EU Directives and far from providing clarity and certainty, has succeeded in just making matters less clear-cut.

Arguably the problem stems from the WIPO Copyright Treaty which conjured up the concept of communication to the public without adequately defining it. That said, one would expect an international treaty to be couched in broad, even vague, terms; an EU Directive is an altogether different thing given that its provisions are supposed to be transferred into national law largely verbatim.

However, as we know, the EU has shied away from the opportunity to completely revise its copyright framework, preferring instead to consider bolting on ever more pointless 'neighbouring rights' under pressure from lobbyists for the print media.

There is a phrase, which no doubt has its equivalents in other languages: 'when you're in a hole, it's best to stop digging'. The CJEU would do well to take notice of this dictum, and overtly recognise the error in some of their earlier decisions.

The thing which troubles me most is that the UK government's White Paper published today tells us that the UK courts will be required to follow the acquis and CJEU decisions handed down during the next two years even after the UK has completed the exit process. I fear that the situation over the correct interpretation of Art 3(1) will not be satisfactorily resolved during that time.

Just one small comment on your paper. In the last four lines on page 15 you say "... it would not really apply to situations, eg embedded and framed links, in which - besides a communication to the public - there is also the reproduction of a copyright work;" I am not clear where you are suggesting the reproduction occurs, but it certainly does not occur on the linker's computer or server, and if you mean (rightly, in my view) that reproduction occurs on the end-user's device, then this reproduction is non-infringing by virtue of Art 5(1) InfoSoc as confirmed by the CJEU in PRCA v NLA c-360/13. I would argue therefore that whether the link is merely clickable or self-activating in the case of an embedded/framing link, is irrelevant in this context.