From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Friday, 31 October 2014

Link and threat? Why the story with hyperlinks and copyright is not over yet

There are links which may be even
cuter than hyperlinks
Besides the terrible, Halloween-related, pun in the title of this post, the question is: do you need permission from the relevant rightolder to link to copyright-protected content? 

This question has haunted the minds of many good copyright souls for a long time, even after the Court of Justice of the European Union (CJEU) issued its decision in Svensson in February last [here and here; the Court confirmed its value as a precedent a few days ago in its quick order in BestWater, a case concerning embedded videos].

The story with copyright and hyperlinks is in fact still far from its conclusion.

During this week alone, there have been at least 3 episodes that will provide food for thought and (endless) discussions also in the coming months. In a nutshell their overall meaning can be summarised as: link at your own peril!

The (new) ALAI Opinion, not necessarily directed at a "new public"

First, this Kat became aware that during its meeting on 17 September last, ALAI (the Association Littéraire et Artistique Internationale) adopted an Opinion on the criterion "New Public", developed by the Court of Justice of the European Union (CJEU), put in the context of making available and communication to the public.

This learned piece builds upon on the earlier statement submitted pending the decision in Svensson [here], in which ALAI took a pretty diverging view from the European Copyright Society and its Opinion on this very topic [here]

The first interesting detail of this new ALAI Opinion is that, unlike its earlier statement, this new document does no longer state that the Opinion was adopted unanimously by the Executive Committe [Merpel wonders why: have people changed their mind? Incidentally, she also notes that some members of ALAI Executive Committee featured also among the signatories of the Opinion of the European Copyright Society].

In any case, what is most remarkable about this document is that ALAI believes that the CJEU got it very wrong in Svensson. In particular, the adoption of the "new public" criterion: 
  1. Is against the understanding of the right of communication to the public in both international and EU laws, as well as earlier CJEU case law; 
  2. Results in the undue exhaustion of the right of communication to the public, contrary to the prohibition in Article 3(3) of the InfoSoc Directive;
  3. Results in the [forbidden: see Article 5(2) Berne] introduction of formalities into copyright: "to the extent that Svensson indicates that the “new public” criterion will not apply if restrictions accompany the work’s making available, the decision risks establishing an obligation to reserve rights or protect works etc. by technical protection measures, in violation of the Berne Convention’s prohibition of  formalities that condition the exercise of exclusive rights."
What ALAI is saying is that any hyperlink would be an act of communication/making available to the public, irrespective of whether or not it is directed at a new public.

[By the way, if you happen to be in London on 13 November, you should not miss this BLACA meeting on linking, featuring very high-profile speakers ...]

Despite her language proficiency
and usual confidence,
Merpel has not been able to understand
everything in the text of the Spanish reform
Do you want to link? Then you should pay ...

Still on the territory of hyperlinks, but in the specific region of newspaper articles, IPKat readers will remember that last year Germany introduced a neighbouring right [see sections 87f, 87g and 87h of the German Copyright Act] that grants press publishers the exclusive rights to exploit their content commercially for 1 year, thus preventing search engines and news aggregators from displaying non-insignificant excerpts from newspaper articles without paying a fee [but see here what happened the same day the new provisions entered into force].

Initiatives similar to the German one were also considered in BelgiumFrance and Spain [but see the criticisms expressed by the Spanish Competition Authority at the end of May, when it said that initiatives like the German one might have anti-competitive effects]. While plans to introduce a new neighbouring right for press publishers were abandoned in both Belgium and France, the same did not happen in Spain.

Yesterday Spanish Parliament adopted in fact the final text of a law that will enter into force in early 2015, and undertakes a very significant reform of Spanish IP system [see here and here]. Further information on the main points of the reform will be provided on this blog soon. 

As regards linking, the new law allows for sanctions of up to €600,000 for linking to unlawful content and introduces an inalienable [so this may mean: no opt-in for Google News, as instead happened in Germany] ancillary right over news content.

According to El Mundo, Google was not thrilled. The US company holds the view that services like Google News help publishers to have traffic re-directed at their websites. While it will continue helping Spanish publishers, the US company will also evaluate options available under the new law.

Günther Oettinger
(disclaimer: NOT Google Glass)
... And this may become the norm at the EU level, too

Is the EU considering adopting initiatives similar to the German and Spanish ones? It looks like Günther Oettinger may be interested. As first brought to this Kat's attention by Katfriend Marc Mimler (University of Warwick) and also reported by The Wall Street Journal, in a series of interviews with German newspapers, the incoming Commissioner for Digital Economy and Society "floated various anti-Google ideas that could take on a more concrete form when he takes office on Nov. 1". 

One option could be for instance to charge Google for "tak[ing] intellectual property from the EU and work[ing] with it". What this does mean is not entirely clear.

What however seems clear is that Mr Oettinger's predecessor, Neelie Kroes, is not impressed. Still according to the WSJ, her spokesman said that the Commission’s job is to solve market failures and enforce rules, not target companies.”


We'll see what happens next month when the term of the new Commission officially starts. Overall, what seems clear from the academic debate and national/EU initiatives alike is that the CJEU decision in Svensson was not the end of the copyright&hyperlinks story. 


Britt Reid said...

Then EU countries can wave bye-bye to links on Google.
It worked with Germany, and after a month or so of no new web traffic, it'll work with them as well...

Anonymous said...

I'm interested in the BLACA meeting - is there any chance you could fix the link - thanks

Eleonora Rosati said...

Hi Anonymous, notice of the meeting should be available on soon. In the meantime, if you send me an email I will forward you the invite. The speakers will be Silke von Lewinski, Jan Rosen and Lionel Bently.

Anonymous said...

I want to share this article on social media, as its a good read, but after reading it, I'm not convinced I should...

Andy Finney said...

Can anyone explain how this fits with the notion of an implied licence covering web pages and their content? This was ably explained by Graham Smith in 'Internet Law and Regulation' but I fear I am now losing track of it.

Ben said...

The ALAI really does protest too much. The new public criterion does derive from the Convention, and it makes a lot of sense. And in the real world the idea that authors should be authorising every act of linking on the internet is completely absurd.

Anonymous said...

The ALIA report also doesn't mention that the non-exhaustion rule in Article 3(3) must probably be qualified when the new public requirement is applicable. Accordingly:

'The right referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the (NEW) public or making available to the (NEW) public as set out in this Article.’

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':