DSM Directive Series #6: 'hyperlinking' in the press publishers' right

The IPKat's favourite type of link

The IPKat is back with the 6th instalment of the DSM Directive (Directive 2019/790) series [previous episodes here, here, here, here, and here]. Today's topic is once again Article 15 and the new press publishers' right. 

Among other things, the protection granted under Article 15(1), that is the right of EU-based press publishers to control the reproduction and making available for online use of their press publications by information society service providers, "shall not apply to acts of hyperlinking" (Article 15(1), subparagraph 3).

Recital 57 substantially states the same thing, by providing that "[t]he rights granted to publishers of press publications should not extend to acts of hyperlinking."

Hyperlinks and the press publishers' right: from the original proposal to the final version

The final version of the directive is not dissimilar from the original EU Commission's proposal on this point. However, unlike the final version, the original proposal included the following disclaimer (Recital 33):

The protection does not extend to acts of hyperlinking which do not constitute communication to the public.

As readers may know, the exclusion of linking from the scope of the right was also motivated by political reasons, as those opposing the directive and what is now Article 15 dubbed this proposal 'link tax' early on in the process. 

Unlike the original version, the final version of Article 15 appears to exclude all acts of hyperlinking from the scope of the press-publishers' right, irrespective of whether they amount to communication to the public under the InfoSoc Directive. 

What remains unclear, however, is why EU legislature employed the technologically-specific term 'hyperlink' rather than, eg, the more technologically-neutral term employed by, first, the referring court and, then, the Court of Justice of the European Union (CJEU) in Svensson, that is 'clickable link' (or 'Internet link').

A hyperlink is in fact defined as 

an element in an HTML document that links to either another portion of the document or to another document altogether. On webpages, hyperlinks are usually colored purple or blue and are sometimes underlined.

In this sense, while 'clickable link' or 'Internet link' appears quite general, a 'hyperlink' is a specific type of 'clickable link' or 'Internet link'.

Does that mean that what Article 15 excludes from its scope is only 'hyperlinks' and not other types of 'clickable links'?

So, for instance, if an information society service provider provided this link:

https://www.youtube.com/watch?v=RBmVdzrA_jE&feature=youtu.be

Article 15 would not apply.

However, if an information society service provider provided this link:

then would Article 15 apply (it is to be noted that also videos can fall within the scope of Article 15: see Recital 56)?

CJEU case law

In its first decision tackling the treatment of 'clickable links' under the InfoSoc Directive, the CJEU stated [paras 29-30] that it would make no difference that

when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.

Indeed,     

That additional circumstance in no way alters the conclusion that the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. 

In its subsequent (succinctly reasoned) order in BestWater (a case concerning a framed link to a YouTube video uploaded without the rightholder's consent), the CJEU relied on this part of the Svensson judgment to conclude that the treatment of framing should be the same as of hyperlinks.

In the final judgment of the linking trilogy, GS Media, the CJEU did not have the chance to consider the issue of whether the type of 'clickable link' at issue makes a difference, also because the questions of the referring court employed specifically the term 'hyperlinks'. In any case, the focus of that referral was on a different issue, that is the treatment of linking to content posted without the rightholder's consent.

So?

Several commentators have suggested, basing their conclusion on Svensson and BestWater, that indeed the type of 'Internet link' at issue makes no difference in the legal assessment.

However, it is apparent that the Swedish court in Svensson did not clarify what type of link was at issue in the background national proceedings: it was "not clear from the documents before the Court", wrote the CJEU in the resulting judgment [para 29].

It is curious, to say the least, that when it came to drafting what would become the DSM Directive, the EU Commission first and then EU legislature employed such a specific language with regard to linking and the scope of Article 15. 

It would not be surprising if relevant rightholders argued that what Article 15 excludes is only hyperlinks, but other types of links (eg, framing, embedding) would fall within the scope of the right. What would then remain to be ascertained is whether such links amount to 'making available' within Article 3(2) of the InfoSoc Directive [this is yet another fairly odd choice, as so far - with the exception of C More, in which the Court clarified that communication to the public and making available are not exactly the same thing: see para 24 - the CJEU has considered linking under Article 3(1) of the InfoSoc Directive].

Similarly, it would not be surprising if someone also argued that a link like the second one posted above would not just entail a 'making availabe', but also an act of reproduction. In this case, the further point to ponder would be whether the reproduction of a still frame from a video could be considered a 'very short' extract and be, thus, also excluded from the scope of Article 15 ... But this is perhaps a story for another time!

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The IPKat's DSM Directive Series

DSM Directive Series #1: Do Member States have to transpose the value gap provision and does the YouTube referral matter?

DSM Directive Series #2: Is the press publishers' right waivable?

DSM Directive Series #3: How far does Article 14 go?

DSM Directive Series #4: Article 17 obligations ... in a chart

DSM Directive Series #5: Does the DSM Directive mean the same thing in all language versions? The case of 'best efforts' in Article 17(4)(a)