The CJEU Hyperlinks Trilogy: Part III, C-279/13 C More Entertainment

For those wondering why buses come in threes, the same could be said of CJEU copyright rulings on hyperlinks. 2014 saw the first two rulings with Case C-466/12 Svensson [multiple previous Katposts including here and here] and C-348/13 BestWater [here]. This Thursday, 26 March, the CJEU is scheduled to hand down its third hyperlinks ruling in C-279/13 C More Entertainment AB – a case where the defendant provided an unauthorised hyperlink to protected content behind a paywall.

Kat-linking

According to one source (reported in Eleonora's earlier post here) all but the fifth question referred in C More Entertainment were retracted after BestWater - i.e. the only question before the CJEU is whether Member States can give wider protection to the exclusive right of authors by enabling ‘communication to the public’ to cover a greater range of acts than provided for in Article 3(1) of the Information Society Directive.

If this is correct, this Kat is not overly optimistic that the CJEU's decision in C More Entertainment will be particularly enlightening on some of the important issues requiring further clarification following the landmark ruling in Svensson. 

Be that as it may, this is an opportune time to quickly recap on the copyright landscape post-Svensson and remind ourselves of why the Svensson judgment perhaps raised more questions than answers. 

The Communication to the Public (CTP) Right

As readers may recall, prior to Svensson, there was uncertainty over whether the ubiquitous practice of ‘hyperlinking’, which forms an essential part of the web’s infrastructure, fell within the scope of the communication to the public (CTP) right under Article 3(1) of the InfoSoc Directive. [Note: ‘hyperlinking’ or ‘linking’ is a generic term which covers various activities such as deep-linking, inline linking, embedded linking and framing, which differ in subtle ways].

By way of reminder, two cumulative criteria must be satisfied to infringe the CTP right:

• an ‘act of communication’; and

• communication of the work to a ‘public’.

Can a hyperlink constitute an 'act of communication'?

The first point to establish is whether a hyperlink can, in principle, constitute an ‘act of communication’ [a topic which generated significant debate with the European Copyright Society's Opinion that hyperlinking in general should not fall within the CTP right, as reported here, and ALAI  (the Association Littéraire et Artistique Internationale) taking a diverging view in its Opinion, as reported here.]

In Svensson, the CJEU clarified that in principle, providing a clickable link to another person’s copyright work can constitute an act of ‘communication to the public’, regardless of whether the work is in fact accessed by the public. In Bestwater, the CJEU confirmed that this approach equally applies to other methods of linking, such as embedded linking and framing [frustratingly, this judgment is still not available in English, although available in other languages here].

Is there a communication to the ‘public’?

Once it is established that a hyperlink can constitute an ‘act of communication’, it must be shown that the communication is to a ‘public’ [a term construed as “an indeterminate number of potential recipients and implies ... a fairly large number of persons” in C-306/05 SGAE.]

However, the analytical approach to construing the ‘public’ depends on the ‘technical means’ by which the work is originally communicated or transmitted. By ‘technical means’, we refer here to macro-level divisions between, for example, transmission of the work via the internet and transmission via satellite broadcasting:  

• if a work was first broadcast on terrestrial TV and then streamed via the internet, this would constitute a different technical means of communication;  

• conversely, if a work was first published online via a website and a hyperlink to that content was then posted on another website, this would constitute the same technical means (transmission via the internet) .

Where a work has been communicated by the same technical means as the initial communication, the CJEU has ruled that the work must be communicated to a so-called ‘new public’ in order to infringe the CTP right [a judicial creation which has been criticised by the ALAI in its Opinion as reported here]. Conversely, where the work is subsequently communicated by a different means of transmission, there is no requirement of a communication to a ‘new public’ [see paragraph [39] in C-607/11 TVCatchup].

The ‘new public’ is essentially the ‘public’ which the rights holder did not take into account when the work was initially communicated. It is thus a subjective term, focussing on the public to whom the rights holder had intended to first communicate the work [see further Eleonora’s and Alberto's analysis here].

In Svensson, the CJEU thus reasoned that:

• where a rights holder initially chooses to makes its work “freely available” to all potential visitors of its website (for instance, by not placing any technical restrictions on access such as placing it behind a paywall), the ‘public’ in the rights holder’s mind consists of all Internet users; 

• in those circumstances, where a third party subsequently links to that rights holder’s work, there is no communication to a ‘new public’ because the work is communicated to the ‘same public’ to whom the rights holder  had originally intended to communicate the work, i.e. to all Internet users.

This led the CJEU to rule in Svensson that, “the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’”.

Whilst this approach appears sensible (given that links form an intrinsic part of the web’s infrastructure and to have found otherwise would have had a chilling effect upon the way in which online content is disseminated) there are other aspects of the Svensson decision which raise a number of important questions which, as of yet, remain largely unanswered.

What did the CJEU mean by “freely available” content?

Subject to a technical
access restriction...

There are question marks over the scope of the CJEU’s ruling that “the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’” (emphasis added).

This much is tolerably clear from Svensson: content subject to technical access restrictions which permits only a site's subscribers to access the content is not considered "freely available". However, what types of technical access restrictions are required in order for the content not be be "freely available"? [To which the CJEU would say that "this is a matter for the national courts to determine", no doubt...]

A further consideration is whether the existence of contractual restrictions on the use of the content is relevant to whether a hyperlink constitutes an act of communication to the public [see also Eleonora’s and Alberto's previous Katpost here] 

Whilst this Kat does not place much hope on the CJEU clarifying these points in C More Entertainment, as reported by Eleonora earlier this year [see here] there is an intriguing hyperlinks decision pending from the Supreme Court of the Netherlands (the Hoge Raad) concerning a Dutch reality TV star and Playboy, where it is hoped that appropriate questions on this very topic will be referred to the CJEU. 

Does it matter whether linked content is lawful?

An important issue requiring further clarification is how you apply Svensson in the context of links to unlawful content, i.e. where the content has been published online without the right holder’s authorisation. 

Looking at the facts of BestWater (where a video was uploaded to YouTube without consent and subsequently framed on a third party website), one would have hoped that the CJEU would have used this opportunity to provide meaningful guidance on the circumstances in which liability for infringing the CTP right may arise in relation to infringing links. Unfortunately the CJEU did not do so.  

The question of infringing links is important in a number of respects, particularly given that once a link to infringing content has been created, there is potential for the infringing link to be copied and circulated on multiple occasions, whether shared via social media, captured in search engine results, or sent via email or instant messaging.

In such circumstances, an important question is whether liability under the CTP right is contingent upon the person providing the infringing link having implied or express knowledge that he/she is linking to unlawful content. 

Whatever you think I did,
I didn't do it. 

Previous CJEU cases suggest that knowledge is a material consideration when considering infringement of the CTP right (see for example Cases C-306/05 SGAE, C-135/10 Societá Consortile Fonografici,  C-403/08 and C-429/08 FAPL, C-607/11 TVCatchup). The language commonly found across these cases is that of a party “intervening” with “full knowledge of the consequences” of such intervention. This concept of “intervening” can also be found in Svensson, where the Court considered that a link which circumvents access restrictions “constitutes an intervention without which those users would not be able to access the works transmitted”.

In light of these CJEU cases, there is an argument that at least some degree of knowledge is required before liability can accrue for an unauthorised communication to the public. If that is correct, this mitigates the risks for parties who inadvertently and unknowingly publish infringing links, such as social media sites whose end-users post infringing links on their services. [Depending on the nature of the content and the link, there may also be a statutory hosting defence potentially available, although site operators would need to respond expeditiously to any take-down notices to retain the benefit of the defence. However, the commercial reality is that most website operators often choose to take a pragmatic view by removing links to infringing content upon receipt of a take-down request, particularly where end-users have breached their user terms by posting infringing links.]

Again, whilst this Kat does not hold his breath that C More Entertainment will shed any light on this issue, we can only hope that the Dutch Supreme Court will follow its Advocate-General's suggestions and refer appropriate questions to the CJEU (see the AG's suggested questions 1, 2 and 5 here) - and that the CJEU will rise to that challenge in due course. 

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Why buses comes in threes: here