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Thursday, 21 January 2016

Linking to unlawful content: what will the CJEU say?

Nedim Malovic
Is linking to content made available on a certain website without the initial authorisation of the relevant rightholder an act of communication to the public within Article 3(1) of the InfoSoc Directive?

As IPKat readers will remember, there are two cases currently pending before the Court of Justice of the European Union (CJEU), ie GS Media [here] and Filmspeler, which will require everybody’s favourite court to address this very issue [here and here tables summarising the state of the art regarding linking in Europe at the moment].

In the meantime, Katfriend and IP enthusiast Nedim Malovic (Stockholm University) has provided a recap of what has happened since Svensson [Katposts here] and ventured to anticipate what the CJEU might say in the near future. His conclusion? The CJEU will likely regard linking to unlawful content as an act of communication to the public.

Here’s what Nedim writes:

Providing a hyperlink to a work is an act of communication to the public

In TVCatchup [here] the CJEU held the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’.

In Svensson the CJEU held that the provision of a hyperlink to a work could be regarded as an act falling within the scope of Article 3(1) of the InfoSoc Directive. 

In achieving this conclusion, the Court considered, first, whether the provision of a hyperlink is to be regarded as an ‘act of communication’ of a work and, secondly, whether such communication is directed to a ‘public’.

For there to be an act of communication of a work it is not required that the work is transmitted to the public, but it is sufficient that the “work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity” (para 19).

A public likely to have been
taken into account?
The provision on a website of a hyperlink to a protected work published on another site affords users of the first site direct access to that work. As such, this act must be considered to be making available and, therefore, an act of communication, within the meaning of Article 3(1) of the InfoSoc Directive.

In relation to the second criterion, ie that the protected work must be communicated to a ‘public’, it follows from Article 3(1) of the InfoSoc Directive that, “by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons” (para 21). 

Where a work has been communicated by the same technical means as the initial communication (eg hyperlinking), then to have an act falling within the scope of Article 3(1) of the InfoSoc Directive the work must be communicated to a ‘new public’. The ‘new public’ is “a public that was not taken into account by the copyright holders when they authorised the initial communication to the public” (para 24)).

Meaning of the Svensson decision

The approach to the right of communication to the public in the context of linking to protected works that the CJEU has taken in Svensson has been subsequently confirmed in BestWater International [here] in relation to embedded and framed links.

The provision of a hyperlink to a work lawfully available and freely accessible on a certain website (as it was the case in the background national proceedings in Svensson) would not be regarded as an act of communication to a new public, in that the public that the relevant rightholders took into account when they authorised the initial communication to the public is the generality of internet users.

However the provision of a hyperlink to a work made available without authorisation of the relevant rightholder on a certain website is likely to be regarded as an act that infringes copyright in that work, because that hyperlink is indeed provided to a new public: the relevant rightholder did not have any public in mind, in that there was never an authorisation to the initial communication of his/her work.

This conclusion is supported by the reasoning in Svensson and BestWater, and several decisions of national courts issued before and after Svensson.

What happens to (unlawful) link providers
Relevant national case law

In 2006 in a case concerning Serie A football matches made available by Chinese broadcasters for online streaming without permission from relevant rightholders, the Italian Court of Cassation held that linking to unlawful content amounted to copyright infringement (Corte di Cassazione, Third Criminal Section, Coolstreaming and Calciolibero, 33945/06, 10 October 2006).

In a similar fashion, in his 2012 decision in Dramatico [noted here] regarding BitTorrent site The Pirate Bay, Mr Justice Arnold held that providing links to allegedly infringing works confirmed the determination of the operators of The Pirate Bay to do whatever they could to provide users with unrestricted access to torrent files, and thereby enabled the users to continue to infringe (para 80).

Again, in a 2012 decision the Amsterdam District Court ruled that the unauthorised linking to photographs made available online without authorisation from the relevat rightholder was an unlawful act of communication to the public and, as such, a copyright infringement (Sanoma Media Netherlands BV and Another v GS Media BV,  507 119 – HA ZA 11-2896, NL:RBAMS:2012:BX7043).

Also more recent decisions of UK courts support the conclusion that linking to a work that has been made available on a certain website without the authorisation of the relevant rightholder amounts to an unlawful act of communication to the public and, therefore, an infringement of copyright. In a case decided shortly after the Svensson decision, and concerning the provision by the defendants of hyperlinks to works unlawfully made available on a third-party website (Paramount, paras 28 to 33), Mr Justice Henderson ruled for the claimants and reasoned that Svensson was absolutely distinguishable on its facts, and had established more clearly than previous authority had done that the mere provision of access by means of a hyperlink will normally amount to a communication within the meaning of Article 3(1) of the InfoSoc Directive. 

If the relevant public at which the link is directed is not the same that the relevant rightholder took into account at the time of authorising the initial communication (as is the case of linking to a work unlawfully made available), then the provision of a hyperlink is to be regarded as an act of communication.

4 comments:

Thomas Dillon said...

I do hope that the CJEU, not to mention IP-sceptics, will bear in mind that it does not follow from the fact that linking is an infringement that a particular remedy will be available. In particular, leaving aside the Electronic Commerce Directive safe harbours, EU member states are not required to provide for damages except where "the infringer ... knowingly, or with reasonable grounds to know, engaged in an infringing activity" (Article 13, Enforcement Directive).

Also, I do not recall having seen the role of indemnities discussed in this context. It is perfectly normal for an "innocent party" to be held liable in tort, but for a chain of indemnity claims to bring liability home to the real wrongdoer (the typical county court battle over a resold stolen car is the classic example).

Mirko Brüß said...

Some more (and obvious) national case law: following the CJEU's decision in the "Bestwater" case, the German FCJ already ruled on case when it came back in "Die Realität II" (I ZR 46/12, 09.07.2015).

It found that (I'm quoting your words here, but that's as good a translation as one could make): the provision of a hyperlink to a work made available without authorisation of the relevant rightholder on a certain website is to be regarded as an act that infringes copyright in that work, because that hyperlink is indeed provided to a new public: the relevant rightholder did not have any public in mind, in that there was never an authorisation to the initial communication of his/her work. See sections 31 ff of the ruling, which can be found here http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=73163&pos=0&anz=1

The case was referred back to the higher regional court of Munich, because the court did not gather any facts on whether the Video was present on YouTube with or without the claimants consent.

Anonymous said...

Only France considers that this should be a communication to the public. Germany does not consider that this should be a communication to the public on the basis of the fundamental right to receive and impart information (freedom of expression) and warned against the unintended consequences. Portugal, Slovakia and the Commission more or less agreed with Germany. We understand that there were several questions from the Court at today's hearing.

Anonymous said...

Anonymous, did you get that info from February 3's hearing that Germany, Portugal, Slovakia and the Commission said that the link isn't a communication to the public? I'm from Canada, but I heard that from OpenMedia.

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