The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Monday, 22 May 2017

IPSoc Event Report: The ever-evolving law on the "communication to the public" right

When the IPKat is communicating to the public,
unlike with the CJEU, no one is left in any doubt...
Last week, members of IPSoc descended on Simmons & Simmons’ offices for a gallop through some recent developments in copyright law, given by IPKat’s own Dr Eleonora Rosati. For those who couldn’t be there, KatFriend Alex Woolgar (Allen & Overy) reports on the highlights:
"To paraphrase the noted fictional fashion designer Mugatu, the economic right which is “so hot right now” is of course the right of communication to the public (CTP) (Article 3(1) InfoSoc Directive). Readers who were present at the Views from the Judiciary session at Fordham 2017 will know that Mr Justice Arnold agrees, as does Marco Giorello (Acting Head of Unit – Copyright, DG Connect, European Commission). The CTP right, whose modern roots can be found in Article 8 of the WIPO Copyright Treaty, is being buffeted by the fast-moving currents of the digital age. The strongest of these currents include ubiquitous Internet hyperlinking, and the shift from consumption of content away from non-transient download and towards streaming (whether via YouTube, Spotify or otherwise) – streaming made up 35.37% of EU Internet traffic in 2012, and continues to grow.

The CTP right appears on one level deceptively simple – there must be (i) an act of communication, (ii) to the public. Since the 2003 implementation deadline of the InfoSoc Directive, there have been 18 CJEU decisions (plus two pending decisions) on the CTP right. This is perhaps indicative of the CJEU’s struggle to clarify what is essentially a sparsely-defined right, as the technological means and trends in communication and consumption of content change over time. Eleonora noted that CJEU jurisprudence on the CTP right is at times inconsistent – compounded, no doubt, by the fact the CJEU has no binding precedent to follow.

The seminar focused firstly on two recent decisions – GS Media and Filmspeler – and then touched briefly on the Commission’s role in all of this, and the ever-popular topic of the impact of Brexit. 
GS Media has already been reported on extensively (not least on this very blog). The photographs in question were leaked (i.e. made available without the right holder’s permission) on an Australian file-sharing website, to which GS Media provided a hyperlink. AG Wathelet reviewed the state of the law following Svensson and BestWater, and went on to conclude that there was no act of communication, because this requires the alleged infringer to “make available” the content. The photographs were already freely accessible via the file-sharing website, so GS Media merely facilitated access, which the AG considered not to be an act of communication. In other words, GS Media’s intervention in the process was not “indispensable”. A significant reason for the AG’s opinion seems to have been policy: specifically, that hyperlinking is essential to the architecture and proper functioning of the Internet. In this way, the AG’s opinion was perhaps correct to steer away from an overly rigid interpretation of Svensson, but the CJEU took a different approach. Mindful of the delicate balance between right holders and the public as a whole, the CJEU in effect chose not to exempt hyperlinking to freely accessible content from copyright infringement completely. The CJEU paid little heed to AG Wathelet’s neat making available / facilitation distinction. Instead, the CJEU emphasised two non-autonomous and interdependent criteria: did the alleged infringer (i) have a profit-making intention; and (ii) know that the linked-to content was unlawful? As the law now stands, the lawfulness of providing a link to freely-accessible content will be determined by the answer to these two questions, as Eleonora’s helpful table summarises far more succinctly than the author could hope to.

The CJEU’s judgment does however leave open some interesting questions. Is a profit-making intention to be determined by reference to the link itself in isolation, or to the context of the website as a whole? National courts seem best placed to weigh the two non-autonomous interdependent criteria on the evidence, but this issue may require further clarification from the CJEU (although in applying GS Media, the German and Swedish courts seemed comfortable enough to decide it was the context of the whole website which is relevant). Also, is the notion of an “indispensable intervention” dead, or just resting?

The more recent Filmspeler judgment (reported on this blog here and here) seems to answer the second question, and more besides. The defendant, Mr Wullems, sold online a multimedia player, which acts as a medium between a source of audio-visual data and a television screen. The underlying software included several hyperlinks to copyright content online, some of which was originally made available without the consent of the relevant right holders, so that such content could be played seamlessly on TV via the Filmspeler app (the author wonders aloud whether there was also scope for discussion as to whether interfacing between computer and TV screen is quite the same technical means as “traditional” hyperlinking). The CJEU held that this hyperlinking was a CTP within the meaning of Article 3(1). While Mr Wullems’ actions were held to be an “intervention” for CTP purposes, the word “indispensible” was conspicuously absent. Instead, in its judgment the CJEU focused on the two non-autonomous and interdependent criteria as used in GS Media.

It is up for debate whether these cases represent a step-change in the CTP right, or a gentler evolution. But it is apparent that the CTP right is being fleshed out to adapt to the technological and social changes alluded to above. As Eleonora noted, these decisions do seem to open the way for courts to attribute primary liability for copyright infringement to mere “facilitators” (and presumably the CJEU will follow AG Szpunar and make similar findings of liability in the Pirate Bay / Ziggo reference. It remains to be seen whether this jurisprudence will bring high-profile platforms such as YouTube into the sights of national courts – to date there have been no decisions of national courts which definitively say YouTube undertakes acts constituting CTP.

Eleonora further noted that the so-called “value gap” proposal under Article 13 of the draft Directive on copyright in the DSM (to mandate licence agreements with right holders unless the platform is eligible for safe harbour, and to put in place appropriate and proportionate measures to prevent infringement) seems to presuppose that such platforms and content aggregators do undertake acts which are CTP within the meaning of Article 3(1) of the InfoSoc Directive. It does seem that this potential lacuna may have been closed by the CJEU before it arises in practice. 
Finally, Brexit once again reared its ugly head. Eleonora suggested that because copyright is only partially harmonised, how copyright in the UK will look post-Brexit has received less attention than other IP rights. The proposed Great Repeal Bill will likely mean that nothing much will change on Day 1 of actual Brexit (given that the nine relevant Directives have already been transposed into UK law, and the two pending copyright reform package may well be ignored during the Article 50 period). But also, in the medium-term, the law is unlikely to change much. There will be no further CJEU references, but unless and until the law is changed substantively, CJEU judgments are likely to remain persuasive, at Supreme Court level at least. It remains to be seen whether the UK courts will draw any distinction between pre- and post-Brexit CJEU decisions (much will depend on how far UK and EU copyright law diverge). In the longer-term, judgments from other Commonwealth countries may again become more persuasive. Some have suggested that Brexit presents copyright opportunities e.g. to introduce a general US-style “fair use” defence. This may have the advantage of flexibility, but it comes with its own problems, such as uncertainty, and potentially an erosion of right holders’ protection and a dulling effect on publication of creative works.

The author’s “take homes” from the seminar were that copyright, and the CTP right in particular, remain strong candidates for evolution over the next several years, due to technological and social change, the Commission’s and the CJEU’s response to such change, and the as-yet uncertain impact of Brexit."

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