"Making available" and hyperlinks: the ALAI position

Not the least interesting feature of the Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the Internet, a ten-page document produced by ALAI, is the fact that it was adopted unanimously by ALAI's Executive Committee back on 16 September, and you don't need to be an expert on copyright to know how difficult it is to get copyright experts to agree anything unanimously in this notoriously fissiparous branch of intellectual property.

The content of this Report and Opinion can be fairly appreciated from its Executive Summary, which reads as follows (with hyperlinks added):

"The exclusive right of “making available” under the WCT and the implementing EU legislation covers the offering to the public of a work for individualized streaming or downloading; in addition, where it takes place, the actual transmission of a work to members of the public also is covered, both irrespective of the technical means used for making available. In essence, what matters is that the act (i) is performed by an individual person (ii) directly or indirectly has the distinct effect of addressing the public, irrespective of the tool used by the individual, and (iii) concerns subject matter protected by copyright or related rights.

As applied to hyperlinks, these findings lead to the following conclusions: (i) The making available right covers links that enable members of the public to access specific protected material; (ii) the making available right does not cover links that merely refer to a source from which a work may subsequently be accessed.

It is irrelevant whether the link takes the user to specific content on a third-party website, or whether the linking site retains a frame around the content, so that the user is not aware that she is accessing the content from a third-party website.

It is also irrelevant to the act of offering access whether the work made available through the link is itself infringing: it is the act of offering that triggers the making available right, and that act is the same whatever the copyright status of the work that is made available.

There is obviously no infringement of the “making available” right where the rightholder's decision whether and under which conditions the targeted content is made available on the internet is respected. In contrast, this means in particular that linking to targeted content infringes the “making available” right if (i) the content is initially made available without the rightholder’s consent, or (ii) technical protection measures have been circumvented or (iii) the availability of the content, even if initially disclosed over the Internet with consent, otherwise clashes with the declared or clearly implied will of the rightholder.

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. 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".

The Report and Opinion is a thoughtful and carefully drafted document, which focuses closely on the current case law of the Court of Justice of the European Union as well as on the position in some EU Member States. For anyone seeking to appreciate the background and sources relating to the current debate over the "making available" right in Europe as it applies to hyperlinks, this paper provides a clear and helpful explanation.

Eyeworks: Dutch court keeps an eye on Newzbin

From Boek9.nl, via Piter de Weerd, comes news of the Hague District Court's judgment in preliminary proceedings of 2 June 2010 in Case KG ZA 10-639, FTD BV v Eyeworks Film & TV Drama BV. Says Piter, this is a ruling in which

"facilitating downloading is ‘making available to the public’. The court explicitly follows Mr Justice Kitchin in Twentieth Century Fox v Newzbin".

According to the Dutch court,

"2.1. The issue of this case is the downloading from Usenet of copyright material and the role played by [the defendant] FTD in this …

2.6. FTD provides a service by which users can find and download files on Usenet in an easy way. To that end it gives access to a computer application, referred to hereinafter as FTD Application, by which users can share information about files stored in Usenet servers. In the FTD Application users post so-called spots, data regarding files which are considered interesting by users. A spot comprises the name under which the file in question can be found on Usenet.

4.3. The present preliminary proceedings concern the question whether by its behaviour FTD makes the work available to the public.

4.4. FTD argues that it does not make available, because the copyright files are not within its power at any time. The servers in which the files are stored are not controlled by it, nor does it have any influence on the downloading by users, so it argues. Be that as it may, provisionally judging it is not relevant whether the copyright files are actually in the power of FTD at any time. Instead it is important whether the behaviour of FTD allows users to download copyright files (in an easier manner) and that it thus makes such files in fact available to the public. This is the case, provisionally judging".

On the decision of Kitchin J the court had this to say:

"4.10. The Preliminary Relief Judge looks for adhesion with a recent decision of the English court. In a judgment with detailed reasons Mr Justice Kitchin finds that Newzbin, a company operating in a way which is similar on relevant points with the behaviour of FTD, infringes copyrights, despite the circumstance that on the site of Newzbin no copyright works have been posted. Just like FTD, Newzbin offers a platform for the exchange of data concerning inter alia the exact location of copyright works in Usenet servers. Thus Newzbin allows its users to download such works (in an easier way). Just like FTD in this provisional judgment, Newzbin was actively and substantially involved in the data posted by users, inter alia by categorizing such data and – at the request of users or not – removing unusable spots. Moreover the activities of Newzbin were aimed, in the view of the English court, at (enabling) large-scale copyright infringement".

You can read the judgment in translation here or, if you prefer it in the original, here. It's good to see how much more comfortable the judiciary in Europe is when looking at decisions of other national courts within the EU: there's no suggestion that a judge is bound by a decision made by a brother judge in another country, but there is at least the prospect of a sanity check, available to any judge who might otherwise feel he was heading in the wrong direction.

No 'making available' without 'reproduction' rules German court in CELAS case

From Dr Martin von Albrecht (K&L Gates) comes news of an important decision last month in which he was personally involved. He writes:

In a declaratory judgment action filed by the company MyVideo (represented by K&L Gates Berlin) against CELAS, a joint venture of the German collecting society GEMA and the UK collecting society MCPS-PRS, the District Court of Munich (Landgericht München) decided on 25 June 2009 that CELAS has no right to prohibit reproductions of the Anglo-American repertoire of EMI Music Publishing Ltd online in Germany.

MyVideo provides an ad-financed website in German (myvideo.de) that, just like Youtube, enables the streaming of user-provided video content over the internet. CELAS, which was set up by GEMA and MCPS-PRS to manage on a pan-European basis the so-called mechanical reproduction rights for online uses of the Anglo-American repertoire of EMI Music Publishing Ltd, had claimed that MyVideo needed a CELAS licence with respect to EMI songs uploaded on its server as part of videos.

The District Court of Munich held that, in general, making available copyright works online required imperatively both making available rights and mechanical reproduction rights, since the act of making available online was technically not feasible without a reproduction. In such a case of union of rights, however, German copyright law did not allow a splitting of making available rights and mechanical reproduction rights for online uses. The court held that, as a consequence, EMI could not have validly transferred only mechanical reproduction rights for online uses to CELAS while the making available rights were still managed by GEMA.

The decision confirms that, in Germany, GEMA still functions as a one-stop-shop for the world-wide repertoire which offers all making available and reproduction rights necessary for online uses. Users do not have to negotiate separate deals with business models such as CELAS or PEDL (Warner) for mechanical reproduction rights. Instead, they can obtain comprehensive licenses from GEMA in a fast and efficient manner - also for the benefit of all copyright holders.

The impact of the decision may be bigger than it seems at first glance because it would stop all the publisher models of withdrawing the mechanical online rights from the collecting societies. The grounds of the German court's decision are in line with the Commission's decision of 6 July 1972 (72/268/EWG, ABl. 1972 L 166/22 GEMA II). The Commission found that "all economically dividable forms of exploitation of copyright under consideration of the differences of the national laws could be transferred separately".

Further analysis of this decision by Dr Albrecht can be found here.