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.

Saturday, 3 October 2015

Greek court says that it doesn't matter whether the content you link to is lawful or unlawful

Thinking of linking? 
Did you think that the story with hyperlinks and copyright was over?

Of course it's not.

On the one hand, there is a new case currently pending before the Court of Justice of the European Union(CJEU): GS Media v Sanoma, C-160/15). This Dutch reference is seeking clarification as to how linking to content (leaked Playboy photographs in this case) freely accessible online, but which is communicated to the public without the consent of the copyright holder, should be qualified.

On the other hand, hyperlinking-loving ALAI (the Association Littéraire et Artistique Internationale) has recently released a new Report and Opinion [***WARNING***: this link may be infringing! Why? Keep reading] on a Berne-compatible reconciliation of hyperlinking and the communication to the public right on the internet  [for previous episodes, see hereherehere and here]. In its latest document, 

“ALAI reaffirms its view that deep links and framing links make the referenced work available to the public, and therefore, in the absence of an exception or limitation, would require authorization. These links offer the works to the public in such a way that the members of the public may access the works at a place and time chosen by them. Those who furnish these kinds of links make it possible to bring the works directly to the computer or device screens of the user, or to download them directly to the computer or device, without further intermediation. By contrast, a hyperlink to the home page of a website hosting the contested work is not itself a communication of a specific work to the public because what is communicated is the homepage, not directly the work. Another step, taken on the host site, is needed before the user accesses the work via the linking measure. In that case, there is a communication to the public, but solely by the linked-to site, not also by the linker.” 

Linking to unlawful content? OK
Circumventing a paywall? Not OK
So, by means of an example, this link would be likely an infringement of ALAI's copyright, whilst this might be OK.

In all this, national courts across the EU have been applying the principles set by the CJEU in Svensson [here and here], and its progeny [here and here].

From Katfriend Yannos Paramythiotis (Paramythiotis and Partners) comes the news that the Athens Court of First Instance has recently addressed copyright issues facing links under Greek law

Here's what Yannos writes:

"The website www.livemovies.gr provides deep links to episodes of Greek TV series. All of the linked episodes are freely available to the public, in the sense  that access to them is not subject to any technical restrictions. However not all of them have been initially made available by their respective rights holders or with their authorisation. This means that while some of the links provided by livemovies.gr re-direct users to the official websites or YouTube channels of the rights holders, others re-directed them to third-party websites, where the episodes have been uploaded and made available without the authorisation of relevant rights holders.

AEPI (Greek collecting society for composers and lyricists) first attempted unsuccessfully to convince the administrator of livemovies.gr to obtain a licence for providing links to audiovisual works that included AEPI’s repertoire. It then filed criminal charges against him for copyright infringement. The administrator responded by filing a declaratory action against AEPI in the civil court for non-infringement of the copyright administered by AEPI. The latter was indeed a smart move: taking the dispute in front of the IP specialised chamber of the Athens Court increased his chances of success and also gave him the right to request that the criminal proceedings be stayed until the issuing of the civil court decision.    

The Athens multi-member Court of First Instance published its decision (5249/2014) on the action of the administrator, ruling that, by linking to the episodes that where already freely available to all internet users, he did not infringe copyright, regardless of the fact that some of the works where unlawfully communicated to the pubic by their uploader. 

A typical Playboy bunny kitten
The decision followed consideration of the CJEU decision in Svensson in regard to those links that re-directed users to episodes uploaded by the rights holders, ie links to official websites or YouTube channels. 

However the interesting part of the decision concerns the links to episodes that where uploaded and made available by third parties, ie without authorisation from relevant rights holders. 

The court referred to the BestWater decision, and concluded that the meaning of that CJEU decision is that the lawful or unlawful of the initial communication to the public is not of legal significance. 

To reach that conclusion the Athens Court took into consideration the fact that in the BestWater case the video that the defendants had framed within their website had been unlawfully uploaded on YouTube. According to the Greek court, circumvention of access restrictions (paywall or even free access only to registered members) should be the sole criterion to consider when determining whether copyright has been infringed by means of a hyperlink. 

The Court concluded that the administrator of livemovies.gr could only be found liable, if he had assisted in the copyright infringement of the initial uploader. That would be the case, if for example he had arranged to share advertisement income with him. Such arrangement was however not proven. 

AEPI will most probably appeal [the outcome of the Playboy case will be particular significant in this case. This Kat suspects that, despite the BestWater order, the CJEU will say that it is not OK to link to content first communicated without the authorisation of the relevant rights holder]."

2 comments:

RT said...

Under the ALAI logic, why isn't a link to the homepage also making available the work that is the homepage, whatever that work happens to be? Many non-news sites have homepages that don't even change that much day to day.

Thought experimenter said...

By the same logic:

When I put references at the end of a scholarly paper, I shall never include the volume and page numbers, as this constitutes a form of deep linking. The article and publication titles shouldn't be provided either, as they belong to the authors and publisher respectively. As for the authors' names, we'll figure out something.

And Document Object Identifiers [DOI] are an absolute no-no.

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