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Tuesday, 11 February 2014

Crystal ball gazing and a KATPOLL: what will be the outcome of Svensson?

Stop whatever you are doing:
it's time to vote
in the Svensson Katpoll!
 (Even Merpel suddenly abandoned
her NY Fashion Week katwalks)
Besides ascertaining whether it is true that Obama has been having an affair with Beyonce, there are no things that are more keenly awaited than the forthcoming judgment of the Court of Justice of the European Union (CJEU) in Case C-466/12 Svensson [here], which is due on Thursday 13 February [yep, that's this week!, screams an unusually excited Merpel]

Of the many questions of interest to copyright enthusiasts, the primary one is certainly whether providing a 'clickable link' falls within the scope of copyright protection. In particular, is a hyperlink tantamount to an act of communication to the public pursuant to Article 3(1) of the InfoSoc Directive which, as a result, requires the authorisation of the relevant copyright holder?

Question #1 in Svensson reads as follows:

"If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?"

Linked: Yes
Communicating: ?
Readers will remember that, as a result of this reference, a heated debate as to what the NECESSARY answer to this question should be has ensued.

The principal terms of the debate may be summarised as follows.

On the one hand, the European Copyright Society [see here and herehas held the view that hyperlinking in general should be regarded as an activity that is not covered by the right to communicate the work to the public. This is because:

1.    Hyperlinks are not communications because establishing a hyperlink does not amount to a "transmission" of a work, and such transmission is a pre-requisiste for "communication";
2.    Even if transmission is not necessary for there to be a "communication", the rights of the copyright owner apply only to communication to the public "of the work", and whatever a hyperlink provides, it is not "of a work";
3.    Even if a hyperlink is regarded as a communication of a work, it is not to a "new public".

On the other hand, the Association Littéraire et Artistique Internationale (ALAI) [see here] has held the view that providing a hyperlink may fall within the scope of the making available right, in that

·        The making available right covers links that enable members of the public to access specific protected material; 
·        The making available right does not cover links that merely refer to a source from which a work may subsequently be accessed. 

"I see ...
I see Merpel in your future!"
This means that linking to targeted content may infringe the making available right if 

i.            The content is initially made available without the rightholder’s consent, or 
ii.          Technical protection measures have been circumvented or
iii.        The availability of the content, even if initially disclosed over the Internet with consent, otherwise clashes with the declared or clearly implied will of the rightholder. Hence, courts should not introduce a general presumption of the rightholder’s consent to further communication to the public of what initially has been posted on the Internet with the rightholder’s consent, since this would amount to introducing an exception or limitation to the right, while general exceptions to the scope of the “making available” right require legislative action. 

While waiting for Thursday's judgment - inspired by a most lovely Katfriend - the IPKat has decided to seek readers' opinion as to what answer the CJEU is likely to provide to this question. In particular:


You have time until Thursday at 8.30 am BST to cast your vote. You can do so by selecting your preferred option at the top of the IPKat left hand side bar. DO VOTE!


Anonymous said...

I voted "it depends", because there is linking and linking. Deep linking, frame linking, linking of a file, linking as an exception, as an implied contract (the google image thumbnails case in Germany for instance), linking expressly forbidden by a message on the website, linking by a search engine. The question IMHO is too large.Technically everything is linking, either internal or external. And there is not only the question of copyright infringement but also of the sui generis database's producer infringement by linking.

Alberto Bellan said...

I voted "it depends" too, and it depends form the effective knowledge of the infringing nature of the linked contents. If I link on purpose on my blog a website where you can watch the pirated last season of Misfits, that may be a communication to the public. If a search engine indexes billions of web pages and authomatically provides links to them, he cannot be held liable for that. Because liability would make its business impossible, no duty of monitoring, freedom of operate a business, importance of ISPs, blablabla.

Anonymous said...


I find the bald statement that copyright does not apply to fall far short of reality. Each element of the three prong statement begs the question.

To wit:

"1. Hyperlinks are not communications because establishing a hyperlink does not amount to a "transmission" of a work, and such transmission is a pre-requisiste for "communication";"

If a hyperlink does not enable a transmission, then the hyperlink is defective. By its very nature, a hyperlink is a device specifically geared to transmission. 1. is a Fail.

"2. Even if transmission is not necessary for there to be a "communication", the rights of the copyright owner apply only to communication to the public "of the work", and whatever a hyperlink provides, it is not "of a work";"

Likewise, a hyperlink is geared to a specific item, otherwise, the hyperlink to a random item would fail for the purpose of the hyperlink. 2. is a Fail.

"3. Even if a hyperlink is regarded as a communication of a work, it is not to a "new public"."

This is a Fail right from the gate. It simply makes no sense from the perspective of copyright law.

Anonymous said...

I should have added, however, the fact that copyright simply does apply on its face (despite the obvious Fail of 1., 2., and 3.), the defense of Fair Use may readily apply.

Of course, the problem with Fair Use defense is that the defense must be looked at from a distinct case by case fact pattern (and may not cover the larger scale ISP type of behavior).

Anonymous said...

@Anon 12:48 - I think in your arguments you're conflating the hyperlink with the result of clicking the hyperlink.

I'm not necessarily saying I disagree with your conclusions, and certainly not that I think it's clear the CJEU should say hyperlinks can NEVER infringe (I'd go for "depends" too).

But there's a difference between "enabling a transmission" and "being a transmission"; if I view a web page with a hyperlink to a work on it, but never click the link, I won't see the work and the data it is made up of will not be sent to my computer - would you really say in that case that the work has been communicated/transmitted to me? (It seems to follow from your arguments that you would only say "no" in the case the hyperlink was actually broken.)

Anonymous said...

Anonymous @ 6:00

Sorry no - it is NOT conflation to understand that what a hyperlink is is intertwined with what a hyperlink does.

That is actually the point that 1., 2. and 3. fail by.

Ask yourself, if a hyperlink does not lead to the item (and to the specific item), is it in truth actually a hyperlink?

A random "take to you any website" mechanism (or a take you nowhere non-linking 'link') simply is not the object of discussion.

It is not conflation when the aspects are not separable.

Anonymous said...

Let us not engage in factetious game-playing of what a hyperlink is.

I am reminded of the foolishness of such in recalling the 'artful' testimony of a recent American president and the definition of the word 'is.'

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