Hyperlinks and the CJEU 'new public' criterion: a Response to Rosen

Last week, in a Katpost entitled "The CJEU 'new public' criterion? National judges should not apply it, says Prof Jan Rosen" (here), fellow Kat Eleonora reported on one of the attractions of this year's Fordham IP Conference, writing:
"... how can a panel on EU copyright not feature at least some discussion of the recent hyperlinking cases, notably the decisions of the Court of Justice of the European Union (CJEU) in Svensson [Katposts here] and BestWater [here]? Not are only things interesting but also get sparkling when the person who discusses all this is someone who has been both really prominent in the post-Svensson debate and is not a huge fan of the 'new public' criterion developed by the CJEU. This is of course Prof Jan Rosen of Stockholm University, among the signatories of the ALAI Opinion on Svensson [ALAI has taken a rather different stance on hyperlinking and copyright from the European Copyright Society].
Eleonora asked Jan if he could provide a summary for the readers of this blog, which he kindly did. Not all readers of Jan's paper were however entirely in agreement with it.  That's why regular reader and copyright enthusiast Andy Johnstone (who also contributes to the CopyrightAid.co.uk forums) begs to differ.  This is what Andy has to say:
Like the ALAI Opinion which preceded it and with it shares much similarity, I find Professor Rosen's argument hard to accept. This be may indicate some intellectual failing on my part, but I think not.
Because Professor Rosen's blog piece is largely a re-working of the executive summary of the ALAI Opinion of 17 September 2014, I hope he will forgive me if I take the arguments in the Opinion as being congruent with his personal position.

Much is made of the fact that there are no references to a 'new' public in any of the treaties and directives which the Opinion cites. But before examining the validity of this line of argument, I would like to eliminate a certain amount of extraneous matter from the discussion. As well as the Berne Convention, reference is made to the WIPO Copyright Treaty (WCT), WIPO Performances and Phonograms Treaty (WPPT), Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) and the InfoSoc Directive (2001/29). TRIPS adds nothing to the party: it merely requires signatories to abide by their obligations under Berne. To that extent its only value here is create a direct legal obligation on the EU to conform to Berne. The WCT and WPPT make fundamentally the same point (namely that the main provisions of Berne should be complied with) in respect of their own subject matter (copyright and phonograms) but significantly they introduce the new concept of making works available to the public in a way that members of the public can access the works from a place and time of their individual choosing. Significantly, the ALAI Opinion makes very little direct reference to this sub-set within the overall right of communication to the public. In contrast I find this distinction to be critical to the debate about linking and, by extension, to the issue of a new public, and so I will return to this later. The InfoSoc Directive Art 3(1) merely restates WCT Art 8, virtually verbatim. I suggest that, given the overlap, TRIPS, WPPT and the Info Soc Art 3(1) actually contribute nothing useful to the debate.

That leaves Berne Art 11bis [reproduced in full at the foot of this blogpost for ease of reference] and the mention in WCT Art 8 of the making available 'right'.

The problem with Berne Art 11bis is that it is very old!  Even if in 1967 (when the current wording of 11bis was added) the drafters of the Stockholm Act of the Berne Convention were prescient enough to predict the arrival of the internet, given that discussions about ARPANET were just starting around that time, they surely had no vision of the concept of works being made available at the time and place of the user's own choosing, in the form that we understand it today. Indeed the technology which allows the making available right to operate mainly lies within the creation of the World Wide Web which did not occur until 1989/90. 
Perhaps more significantly, delegates at the Berne Convention's 1971 Paris Act saw no need to update 11bis. It is self-evident that the entire content of 11bis is concerned with traditional terrestrial broadcasting; it doesn't even address the subject of satellite broadcasting which had begun in 1962 via Telstar. It is unsurprising therefore to find that 11bis is as ill-suited to being applied to a fundamentally different technology such as the internet as would a copy of the 1967 Highway Code to today's road users. Yet the argument in the ALAI opinion is largely based on an analysis of the meaning to be construed from 11bis. 
I would agree with the ALAI's conclusion that the meaning of 11bis is relatively clear, but that makes it all the more obvious that Berne is taking about apples, while the issues in Svensson were oranges. At its heart the ALAI argument is that, since there was no mention of a 'new' public in 11bis (or the other referenced treaties etc), this means that the CJEU's coining of both the term and the concept is illegitimate. But 11bis doesn't mention the making available right either, so is that also suspect? Obviously the answer is no because the concept of making available is here in real life, thanks to the internet and reflects that, unlike in 1967, we now have two models of transmission within the umbrella term 'communication to the public', namely push (broadcast) and pull (on demand, a.k.a. 'making available'). 
Further, the ALAI fails to acknowledge that paragraph 2 of 11bis grants signatories a margin of appreciation in how they determine the conditions under which the rights in 11bis may be exercised. While this seems unlikely to have been an attempt at making 11bis future-proof, it recognises that specific national circumstances may require a degree of flexibility to vary the implementation of the general international norm. Or to put it another way, Berne offers more flexibility than ALAI give it credit for. The introduction of the making available right is an obvious example of a change in the conditions under which the rights may be exercised. What Art 8 of WCT provides, in effect, is a much needed update to reflect the technology of the day (1996). 
Checking Berne: no mentionof the word "phonogram" ...
Clearly the Berne Convention has been updated many times in its 128 year history, so treating Art 11bis as the last word in international jurisprudence on communication to the public is to ignore how Berne has developed and grown over the years. The fact that Berne has not been further updated since September 1979 probably says more about the pre-eminence of WIPO, the USA and the EU, when it comes to setting the agenda, than it does about the enduring value and relevance of every last word to be found in Berne. Berne provides the overarching framework containing the principles of international copyright; in many discrete areas of the law, things have moved on. There is no specific mention in Berne of an exception for parody or how to treat orphan works, yet the EU and other states have seen fit to introduce legislation for these purposes. There is no mention of the management of collective rights or the word 'phonogram' in Berne, yet the the world of copyright today is built around such terms. Few states retain the minimum term of 50 years post mortem auctoris required by Berne. These and many other trivial discrepancies only serve to show that Berne should not be determinative when it comes to the small details.
ALAI's objection to the concept of a new public is that this somehow limits the author's right to authorise communication of his work to the public, and at the same time it causes that right to become exhausted, because it removes the author's ability withdraw his permission. I would contend that, far from limiting the author's right, the CJEU in Svensson sought to protect it by trying to identify those sub-groups within the public as a whole, to whom the author envisaged communicating his work, and differentiating them from other parts of the public not so authorised. 
In one sense the concept of a 'new' public is analogous to the adaptation right with respect to translations of a literary work. An author writing in English envisages his readers as being English speakers; if he authorises a French translation of his work he adds French speakers to the reading public to whom he wishes to communicate. The latter are 'new' readers not envisaged when the author wrote and initially published the book. We might speak of these French readers as being a different target audience, just as a website behind a paywall envisages a particular sub-group of the overall public as its target. This is essentially the distinction the CJEU was trying make. They chose the word 'new' but could equally have chosen 'different' or 'other' or 'separate' to denote that part of the public which the author did not have in mind at the time he authorised a communication to the public.

The second objection found in the ALAI Opinion is that somehow the 'new' public concept leads to exhaustion of the author's right to communicate to the public, on the basis that if their works are linked to, this somehow compromises their ability to withdraw authorisation at a later stage. This is a puzzling conclusion. If one considers the question in terms of a traditional broadcast, then this is a one-off event. In theory a broadcast could effect a simultaneous communication to several million people or none. The author's right to decide whether or not to communicate the same work again through a subsequent broadcast, to the same audience or to an entirely different one, remains unaffected by the single event of the first broadcast. However making the work available for a member of the public to access at a time of their own choosing, must, by definition, extend over a far longer period of time than is the case with a broadcast. By authorising that a work is made available with the meaning of WCT Art 8, the author is accepting that this is a continuous event which he can (subject to contract) terminate at will and still retain the right to re-authorise the communication at any time. Communication to the public by making available is achieved by a series of individual events which may or may not be concurrent; the quantity of the public in receipt of the communication could still be millions or none, although this may well be determined by very different factors to those which apply to the size of an broadcast audience. 
Nonetheless there is no exhaustion of the making available right due to something similar to estoppel, that is to say the length of time the authorisation is in operation does not diminish the author's right to terminate the authorisation as and when he chooses. But what is far more significant, when it comes to distinguishing between a broadcast and making available, is the functioning of a link. A link provided by another website has no meaning in the context of a broadcast; links only apply and function where the content being linked to has an existence well in excess of the few milliseconds necessary to transfer a piece of data within a broadcast; this means that linking only exists as a viable technical process where the act of communication which has been authorised is the making available right (which to emphasis the point once more, does not exist within Berne Art 11bis). Although a broadcast may be conducted via the internet, the more prevalent form of communication to the public via the internet is the making available form. While the authorised content is on the website, being made available to the public, barring any technical or other measures which the CJEU characterised as a means of excluding a new public, the content is freely available for any one to consume irrespective of how they arrived at the site. The author's right to authorise the communication is mainly defined in temporal terms, namely, how long he wishes the work to be made available in that way (other limitations in terms of territory or who may access the work can usually only be achieved by Technical Protection Measures, 'TPMs'). So long as the period of availability is not less than the time required for the user to make his choice and carry out the technical steps necessary to access the complete work, technically the criterion for the making available right will have been met. Realistically the period should as a minimum, probably be measured in days, or weeks. And the consequence of the author withdrawing permission is the same for all users of the website, also irrespective of how they arrived at the site. The content once removed from the host server is no longer available to the whole of the public (comprising both the target audience and any new audience), and in this way the author retains his right to cease communication of his work to the public when he chooses and he also retains his right to communicate it again on a future occasion if he chooses. There is no exhaustion of the right to authorise communication just because the authorisation permits the work to be made available as defined in WCT Art 8, or by the operation of the CJEU's construct of a new public.
In many ways the problem with the ALAI position on exhaustion (second sentence, first paragraph, page 15 of the Opinion) seems to stem from the false premise that linking or framing are technically different to accessing the content normally via a direct URL. Once it is understood that a link merely allows the content to be requested by the end-user's computer directly from the authorised server, with no intermediate copy held, authorised or facilitated by any other server, it is clear that the process of transmission remains exactly the same and at all times falls within the authorisation of the author or copyright owner, whether the communication is initiated by a link or a direct visit to the authorised host site. Clearly where the reproduction right is infringed, by the copying of the protected work onto an unauthorised server, this action would supplant the authorised act of communication, and as the CJEU in Svensson implied but did not expressly state [31, last sentence], this leads to a different cause of action, where the type of public is no longer material.

Finally ALAI argue that, in order to protect the right to authorise communication of a work to the public, and to avoid the exhaustion of that right which they say will result if the concept of a new public is allowed to stand, the author will need to resort to TPMs. These TPMs would, in ALAI's view, be necessary to prevent the linking which they appear to believe causes the dilution or exhaustion of the right. They maintain that this would be contrary to the Berne Art 5(2) prohibition of formalities. This is not expanded upon in the Opinion, possibly because it is arrant nonsense. First, TPMs cannot be deployed solely to defeat linking while at the same time continuing to allow the public to access the site directly. Where an author sets out to expressly limit the act of communication to a specific, defined sub-group of the public, he is perfectly able to employ restrictive measures (paywalls, membership systems, logins, passwords etc) to control who may access the site or parts of it, but this is a discretionary action that falls well outside both the letter and spirit of Berne Art 5(2). To that extent, TPMs applied to control access to a website, or parts thereof, are analogous to TPMs as applied to digital media such as music downloads or films on DVDs. They are additional security measures the rights owner applies to protect the economic value of his work from piracy, or on grounds of confidentiality, privacy, etc. TPMs used in this way are not formalities imposed by the state in order for the author to enjoy and exercise his rights.

ALAI imply (see paragraph 2 of the Executive Summary to the Opinion) that the CJEU was forced into adopting the concept of a new public in order to avoid causing the internet to grind to a halt, once they had found that linking was a communication to the public. ALAI thought the CJEU's decision on linking was correct, while many others, including the European Copyright Society (ECS), feel this is actually where the Court went wrong. If one follows the ECS's cogent argument that linking is not an act of communication, the whole issue of what constitutes the public, or a sub-set of the public, falls away. 
What is clear from this debate is that the EU, in conducting its review of copyright reform, needs to pay close attention to this particular subject. To my mind what is needed is the creation of a clear distinction between broadcasting (a unidirectional transmission requiring merely passive participation by the recipient) and what is generally understood by the making available right (or on demand communication) where the end-user/customer/client initiates and largely determines the parameters of the process. Such a split would greatly assist the courts, copyright owners and consumers of copyright works in understanding how the right of authorising communication to the public should take effect.

Article 11bis: Broadcasting and Related Rights

1. Broadcasting and other wireless communications, public communication of broadcast by wire or rebroadcast, public communication of broadcast by loudspeaker or analogous instruments; 2. Compulsory licenses; 3. Recording; ephemeral recordings

(1) Authors of literary and artistic works shall enjoy the exclusive right of authorizing:
(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;

(ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;

(iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.
(2) It shall be a matter for legislation in the countries of the Union to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.

(3) In the absence of any contrary stipulation, permission granted in accordance with paragraph (1) of this Article shall not imply permission to record, by means of instruments recording sounds or images, the work broadcast. It shall, however, be a matter for legislation in the countries of the Union to determine the regulations for ephemeral recordings made by a broadcasting organization by means of its own facilities and used for its own broadcasts. The preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be authorized by such legislation.
Hyperlinks and the CJEU 'new public' criterion: a Response to Rosen Hyperlinks and the CJEU 'new public' criterion: a Response to Rosen Reviewed by Jeremy on Wednesday, April 22, 2015 Rating: 5


  1. I am not sure that I get this analysis at all (and never have, though it is repeated often).

    The "old is bad" argument does not of itself work. My father is old and has bags of utility.

    In order to justify that stricture in this case one needs to provide proof of the proposition in the instant case - which seems lacking. Also I am not sure that it does any good to have that whole (totally unnecessary) debate at the start about "which treaty?"


  2. European courts have dealt extensively with the issue of hyperlining in copyright infringment cases over the last years, and the argument that hyperlinking is "communication to the public" has almost always been rejected.

    Apparently, it is only in Sweden that courts are still confused.

  3. @Ashley Roughton.
    My argument was that 'old is not necessarily immutable'. Clearly Berne 11bis did not and could not take into account a world of linking of which it was unaware. The normal way in which law develops is for the courts to attempt to interpret the law in the light of new technical developments. Since the activity of linking dates from the early 1990s, is it not reasonable to look for answers in more recent sources of the 'law', such as the court's own caselaw, and the EU Directives?

  4. When I took a cyber law course a few years back we discussed the fallacy of "the law of the horse," of which I am reminded of here with the reference to "new technologies."

    It is simply not a given that new technologies must mean that new law is necessary.

    Yes, the new technology of hyperlinking makes it easier to reach additional works.

    So what?

    The fundamental actions for which the original law controls are still in play. Are those fundamentals altered in any meaningful way (and by meaningful, I do not include "preferred business models")?

  5. "Hyperlinking makes it easier to reach additional works" - in the same way as the scooter makes it easier to get to the bookstore. Should the distribution right extend to all means to reach the bookstore?

  6. Interesting discussion, but with all due respect it misses the point that the ECJ has no jurisdiction to re-interpret the Bern Convention. For those interested in the division of powers between the Union and its member states you'll find the answer in Article 351 of the Treaty on the Funcioning of the European Union. Hence, irrespective of whether you agree with the case law in substance or not, the ECJ has no more powers than e.g. a Swedish Court to contrue the Bern Convention in the UK.
    With best regards,
    Claes Granmar


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