Communication to the public: is that the effect that finally matters?

Fig. 1: 

The concept of ‘communication to the public’ 

in CJEU case law

The IPKat is delighted to host the following guest contribution by Olena Butriy (University of Groningen) on the right of communication to the public within Article 3(1) of the InfoSoc Directive, as interpreted in recent case law of the Court of Justice of the European Union (CJEU).

Here's what Olena writes:

"‘Communication to the public’ as an open norm of Article 3(1) of InfoSoc Directive

Recently the CJEU has had to decide on an entire series of preliminary references where national courts asked for interpretation of the expression ‘communication to the public’ of copyright-protected works. 

Through SGAE, FAPL, OSA, Svensson, BestWater, Sociedade Portuguesa de Autores, and Reha Training, the CJEU has identified two cumulative criteria of that concept: (1) an ‘act of communication’ of the protected work should happen (2) to a ‘public’, as shown in Fig. 1.

In this post, we bring forward the idea that taking into account (1) the effect of ‘act of communication’ and (2) an effective ‘public’ might be a way to approach the entire concept of ‘communication to the public’, especially, when it concerns communication in the online environment.

 ‘Communication to the public’ in two cumulative criteria

As readers know, the CJEU would usually decide in two cumulative steps whether a communication to the public within Article 3(1) takes place and, therefore, a permission of the rightholder for such a communication is required.  First, the CJEU would look whether an ‘act of communication’ of the protected work could be identified. Secondly, the CJEU would decide whether the act of communication would occur to a ‘public’. The criterion ‘public’ seems to be more abstract than the first criterion and sensitive to interpretations.

Fig. 2:  

an ‘act of communication’

Top:

Sociedade Portuguesa de Autores

Bottom: Svensson

An ‘act of communication’

In its case law the CJEU has considered that for an ‘act of communication’ “it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity” [SGAE, para 43; Svennson, para 19].

In Fig. 2, two examples of ‘act of communication’ from case law of the CJEU are illustrated. The choice of those two decisions was motivated by conceptual similarity of those cases. The first example is taken from Sociedade Portuguesa de Autores, where the initial communication to the public happened by radio broadcast of copyright-protected works. The question before the CJEU was whether the use of loudspeakers and/or sound amplifiers in a café-restaurant to enhance the initial radio broadcast – such that customers of the café-restaurant could enjoy the radio-transmitted works – would result in a separate communication to the public. The CJEU answered this question in the affirmative noting that loudspeakers and/or sound amplifiers intervene the initial radio transmission in order to allow customers of the café-restaurant to enjoy the musical works from a different (i.e., customer) area of the café-restaurant. Without the intervention, only the public next to the radio could enjoy the radio broadcast, while the loudspeaker intervention allows enjoying the music also in the customer area of the café-restaurant [Sociedade Portuguesa de Autores, para 17].

The second example is concerned with Internet communication in Svensson. In this preliminary reference, the initial communication to the public happened by posting news articles written by journalists for the newspaper on the webpage of that newspaper. The question before the CJEU was whether the provision of hyperlinks to those articles on another website somewhere on Internet would result in a separate communication to the public of Article 3(1) InfoSoc Directive. The CJEU held that the provision of a hyperlink constitutes an act of communication since via a hyperlink news articles become available to readers of Internet portals different from the initial newspaper website [Svensson, para 20]. Thus, a hyperlink intervenes to make it possible to access the copyright-protected work from a different place (i.e., website) on Internet.

Fig. 3: 

linking to the content on another website

What are the effects? and an ‘act of communication’

Here a comparison comes to mind, illustrated in Fig. 3. A hyperlink could be compared to a window in the building, while the initial Internet website presenting the copyright-protected work could be compared to the sunlight outside that building. Prima facia only the public visiting the initial website can enjoy the protected work. This could be compared to the public outside the building enjoying sunlight. Then, the provision of a hyperlink to the initial website with the copyright-protected work could be seen as the provision of a window in the building. When the window is open for light [i.e., a hyperlink clicked on], also the public inside the building can enjoy sunlight without the need to go outside the building. Similarly, via a hyperlink Internet users can enjoy from other Internet websites the copyright-protected work located on the initial website, without the need to spend time on searching for the initial location of the copyright-protected work and visit this initial website. Thus, with the help of hyperlinks Internet users can access the copyright-protected works that they are even not aware of and, respectively, would not be able effectively to find them without the right search words and/or search engine indexing that would bring the works in question on the top of the Internet information iceberg.        

It follows that an ‘act of communication’ could be seen as establishing a new access channel to the copyright-protected work. Whether this new access channel will have its own effectively new public is a different question.  

Coming back to Svensson, the CJEU concluded that the provision on a website of a hyperlink to copyright-protected works located on another website constitutes an ‘act of communication’. However, this act of communication would not reach its own ‘new public’ if on the initial website the works in question were ‘freely available’. Without a ‘new public’ the second criterion of the concept of ‘communication to the public’ within Article 3(1) is not fulfilled, according to the CJEU. About the notion of a ‘new public’ we will talk here in a short while.

           

An ‘act of communication’ and Internet links: recent developments

In its recent decision in Reha Training the CJEU has provided a few more details on the concept of ‘communication to the public’. In particular, the CJEU held that “in order for there to be a communication to the public, that user must, in full knowledge of the consequences of its actions, give access to the television broadcast containing the protected work to an additional public and that it appears thereby that, in the absence of that intervention those ‘new’ viewers are unable to enjoy the broadcast works, although physically within the broadcast’s catchment area” [Reha Training, para 46]. Reha Training was concerned with TV broadcasts offered to visitors on premises of a rehabilitation centre. With the decision in Reha Training, the question remains how the formulated definition of ‘communication to the public’ would influence the understanding of the criterion of an ‘act of communication’ in Internet environment. 

For Internet users the access to a particular copyright-protected work placed somewhere on Internet depends on a number of factors. In particular, those factors include (i) awareness of the existence of the particular work, (ii) incentive and possibility to search for this specific or a similar work, (iii) knowledge of right search keywords, (iv) indexing within the search engine that would allow an average user to find the work in question within a brief amount of time. In practice, it means that knowledge about the existence of specific copyright-protected works and an effective access to those works is often implemented with the help of hyperlinks. Therefore, in cases where an Internet link clearly contributed to implementing an effective access to the specific copyright-protected content for a fairly large number of people, an ‘act of communication’ seems to be present.

The concept of a ‘public’

The CJEU decided that the second criterion a ‘public’ in ‘communication to the public’ of Article 3(1)should be understood as a ‘new public’, that is, “a public that was not taken into account by the copyright holders when they authorised the initial communication to the public” [SGAE, para 40; Svensson para 24]. In particular, in Sociedade Portuguesa de Autores the CJEU held that visitors of a café-restaurant enjoying radio broadcast via loudspeakers and/or amplifiers constitute a ‘new public’ with respect to the initial public at which radio broadcast is directed. As a result, also the second criterion a ‘new public’ was fulfilled in Sociedade Portuguesa de Autores and, therefore, communication to the public of Article 3(1) would take place when a radio broadcast is transmitted to visitors of the café-restaurant via loudspeakers and/or amplifiers.

Svensson has brought a new turn in the right of communication to the public. This is there the CJEU interpreted the concept of ‘communication to the public’ of Article 3(1) InfoSoc Directive for Internet environment. In particular, the CJEU decided that a copyright-protected work freely available on the website does not reach a ‘new public’ via a hyperlink placed on another website [Svensson, para 25]. In this way the CJEU concluded that there is no communication to the public of Article 3(1) InfoSoc Directive when hyperlinks are provided to the work freely available on another website since the second criterion of a ‘public’ is not fulfilled here.

Fig. 4: 

The proposed generalised 

concept of a ‘new public’

The concept of a ‘public’ in a case of unauthorised initial communication. Broadening the definition of a ‘public’?

A majority of preliminary references to the CJEU for the interpretation of the expression ‘communication to the public’ of Article 3(1) InfoSoc Directive is concerned with the situation of two communications: the initial authorised communication and a subsequent communication to the public. It was the case in SGAE, OSA, Svensson, Sociedade Portuguesa de Autores, and Reha Training.

Via those cases, understanding of ‘communication to the public’ as an ‘act of communication’ to a ‘new public’, where a ‘new public’ is a public that is not taken into account by the rightholder when authorising the initial communication to the public, has been established. At the same time, a minority of preliminary references falls outside the just-mentioned scenario of the initial authorised and a subsequent communications. It goes about BestWater and presently pending GS Media preliminary references. In those cases, there is no initial authorised communication to the public.

In particular, in BestWater, a 2-minute film was placed on YouTube without permission of the copyright holder and, then, linked/embedded into another website. Thus, the initial act of communication was realised by unauthorised placement of the film on YouTube, while a subsequent act of communication was implemented by providing the (embedded) link on another website to the video on YouTube. BestWater was primarily concerned with the legal qualification of embedded links, and the fact of initial unauthorised communication to the public was not addressed by the CJEU at that time. It is GS Media where the initial unauthorised communication to the public is considered for the first time in the context of Article 3(1) of the InfoSoc Directive. In GS Media, a website offered the hyperlink accompanied with the text drawing attention to the link and its content. The hyperlink led to another website where the copyright-protected work was hosted without permission of the rightholder. 

We suggest here that for the minority of cases such as BestWater, GS Media, the literal application of the definition: a ‘new’ public is a public that is not taken into account by the rightholder when authorising the initial communication, needs an interpretation since there is no initial authorisation that could have been taken into account. In other words, the established definition of a ‘new public’ covers a special case within a broader variety of possible situations. This is also understandable because the present definition was designed for the specific preliminary references pending before the CJEU. At the same time, it should be possible to generalise the definition of a ‘new public’ to cover also cases such as BestWater and GS Media.

A broader definition would have to take into account that the initial communication to the public is not always authorised. That could be done by explicitly mentioning that a ‘new public’ is a public that is not taken into account by the rightholder in a possible authorisation of the initial communication to the public. Accordingly, the word ‘possible’ would serve two purposes.

First, the generalised definition would be readily applicable to both cases of the

Fig. 5: The concept of  ‘communication to the public’ of Article 3(1) - Olena Butriy's interpretation

authorised and unauthorised initial communication to the public, as shown in Fig. 4.

Secondly, the definition: a ‘new public’ is a public that is not taken into account by the rightholder in a possible authorisation of the initial communication to the public, would identify any public not covered by the initial authorisation as ‘new’. Accordingly, a public reached in a subsequent act of communication is ‘new’ when the initial communication to the public is unauthorised. In other words, it is not relevant which fraction of public would accesses the copyright-protected work via the initial act of communication and which via a subsequent one. What is relevant is that those two acts of communication effectively share unauthorised public. In this way, the core principle of Article 3(1) InfoSoc Directive, i.e., any communication to an unauthorised public should be authorised, would be implemented.   

Fig. 5 shows the ‘communication to the public’ test for the proposed generalised definition of a ‘new public’.

A ‘new public’ in Internet: recent developments

Last but not least, we would like to recall here para 45 of Reha Training decision. There, with respect to a ‘new public’ the CJEU further specified that  “a ‘new public’, that is to say, to a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public”. This somewhat nuanced definition of a ‘new public’ might imply that an effectively different use of the copyright-protected work when communicated to the public has its own (i.e., new) public and, therefore, requires a separate authorisation of the rightholder. (It would be an interesting development if the CJEU distinguish between communications to the public made with effectively different purpose or use of the protected work.)"