Again on the first post-GS Media national decision

As reported and discussed on this blog, last month a Swedish court was likely the first in Europe to apply the principles that the Court of Justice of the European Union (CJEU) set in its landmark decision in GS Media, C-160/15 [discussed here, here, here, here].

Katfriends Nedim Malovic and Patricia Haddad (Sandart & Partners, Stockholm) have also taken a look at the decision.

Here's what they write:

"On 13 October 2016 Attunda Tingsrätt (the Attunda District Court) ruled against Les Éditions de L'Avenir SA (a Belgian media company) in a case concerning the embedding by this of a YouTube video that had been uploaded on YouTube without the authorisation of the relevant copyright owner.

Factual background

Rebecka Jonsson (the copyright owner and claimant) travelled to the Zambezi River in 2012 and filmed a bungee jumping session in which an incident occurred [see also here]. Subsequently, an unknown individual uploaded the video made by the claimant on YouTube. On 9 January 2012 the YouTube video was embedded on L'Avenir’s website, run by the defendant, in the context of an article describing the incident. The claimant had neither authorised the publication of the video on YouTube, nor its embedding in the L'Avenir article. 

The claimant brought proceedings against Les Éditions de L'Avenir, seeking EUR 1931 in damages, as well as award of litigation costs. She claimed that L ́Avenir had infringed copyright in her video by: (i) embedding it on its website; (ii) publishing a frozen still of the video; and (iii) failing to acknowledge her as the author of the video.

The decision

The Attunda District Court concluded that:

(i) L'Avenir had published the link in question on a news site, and the communication in question was directed to a ‘new public’, thus amounting to the commission of an act restricted by copyright. Given the specific nature of the L'Avenir website (ie a news site), it followed that there was also a profit-making intention behind the embedment of the link;

(ii) By posting the frozen still on its website, L’Avenir had reproduced a copyright work and communicated it to the public, thus infringing the claimant’s exclusive rights;

(iii) By means of the evidence submitted by the claimant it was clear that claimant’s name was not stated anywhere in connection to the embedded film or frozen still, so the court held for the claimant also in respect of her moral right claim.

Extreme bungee jumping

Comment

Notably, this judgment appears to apply a strict interpretation of the principles that the CJEU established in its recent GS Media decision, in particular that the person who published the hyperlink with the intention to pursue a profit is deemed to know or ought to have known that the hyperlink would provide access to a work published without the rightholder’s consent. 

As also noted by Eleonora on this blog, it is unclear in what sense the defendant published the link to the claimant’s work to pursue a profit. Following the reasoning of the Attunda District Court, it would indeed appear that a profit-making intention by a defendant – and, with it, the presumption of knowledge – is relatively easy to invoke successfully. All this makes one wonder whether – together with the subjective element/knowledge of the person who provides the link – also the intention to pursue a profit is to be regarded as having the same value of presumption. 

Nonetheless, it is important to recall that – even prior to the string of CJEU decisions on linking – courts in EU Member States held that linking to unlicensed copyright content would fall within the scope of the right of communication to the public [see here]. 

Well before the CJEU decision in Svensson (2014), for instance, in 2006 in a case concerning Serie A football matches made available by Chinese broadcasters for online streaming without permission from relevant rightholders, the Italian Court of Cassation held that linking to unlawful content amounted to copyright infringement (Corte di Cassazione, Third Criminal Section, Coolstreaming and Calciolibero, 33945/06, 10 October 2006).

In a similar fashion, in its 2012 decision in Dramatico regarding BitTorrent site The Pirate Bay, the High Court of England and Wales held that providing links to allegedly infringing works confirmed the determination of the defendants (the operators of The Pirate Bay) to do whatever they could to provide users with unrestricted access to torrent files, and thereby enabled the users to continue to infringe.

Also more recent decisions of UK courts support the conclusion that linking to a work that has been made available on a certain website without the authorisation of the relevant rightholder amounts to an unlawful act of communication to the public and, therefore, an infringement of copyright. In a case decided shortly after the Svensson decision, and concerning the provision by the defendants of hyperlinks to works unlawfully made available on a third-party website, the High Court of England and Wales ruled for the claimants and reasoned that Svensson had established more clearly than previous authority had done that the mere provision of access by means of a hyperlink will normally amount to a communication within the meaning of the right of communication to the public.

In addition to the above and as a final point, when it comes to discussing the scope of copyright protection, it is difficult not to mention the policy debate that has been unfolding in Brussels over the past few months, ie since the launch – in May 2015 – of the EU Commission’s Digital Single Market Strategy. In particular, when it comes to online platforms, the question of what level of protection copyright owners enjoy and should enjoy has been particularly sensitive. 

All this makes it apparent how determining the appropriate scope copyright protection has proved challenging, whether at the judicial or policy level, and especially in an online context."