Córdoba - The CJEU to re-visit the Right of Communication to the Public

Alcázar de los Reyes Cristianos

Readers of this blog will be well-aware of the numerous decisions of the Court of Justice of the European Union (CJEU) on the right of communication to the public within Article 3 (1) of the InfoSoc Directive, e.g. GS Media [Kat-coverage here], Filmspeler [Katpost here] and Ziggo [Katposts here].

While the CJEU did provide useful guidelines on hyperlinks, it is clear that not all questions regarding the right of communication to the public have been answered.

From Germany’s Federal Court of Justice (FCJ) comes another request for a preliminary ruling under the name of ‘Cordoba, C-161/17’.

The question is rather simple, and this Kat believes so is the answer:

A work (a picture of the Spanish city of Cordoba) is freely accessible to all internet users with the consent of the copyright holder. Another person makes a copy of the image-file on his own server and uses this copy on his own, freely accessible website.

Does this behavior constitute an act of communication to the public?

Legal Background

Earlier decisions of the CJEU have dealt with linking to and framing/embedding copyright-protected works.  From these decisions we have learned that an act of communication to the public is made when the following criteria are met:

- an act of communication

- the communication of a protected work to a ‘public'

plus either

- a communication using specific technical means, different from those previously used

or

- a communication, to a ‘new public’

The defendant in the Cordoba case used the last of these criteria to argue that his actions did not constitute a communication to the public. He argued that the image was already available - without technical restrictions - to the general internet public with the owner’s consent. According to Svensson and GS Media, linking to such a work is indeed not a communication to the public. However, the defendant did not merely link to the image and did not merely embed it on his homepage. Instead, he made a copy [the reproduction right is clearly affected here, but not part of the reference] on the server of his own website and made this copy available to the public.

When is a public ‘new’?

In its decision to stay the proceedings, the FCJ argues that such an action should be considered an act of communication to the public that requires the owner’s consent. The judges affirm an act of communication to a public. When analyzing the ‘new public’ criterion, the FCJ disagrees with the defendant. According to the decision, the principles established by the CJEU for cases of linking and framing cannot be applied to cases such as the one at hand. Citing GS Media, the court highlights the importance of hyperlinks for a sound operation of the internet. It then contrasts the case at hand and points out that here, it is not necessary for a sound operation of the internet to be able to copy other people’s content to one’s own website and make it available there. In such cases, intellectual property rights, safeguarded by Article 17(2) of the Charter of Fundamental Rights of the European Union would outweigh the freedom of expression and of information, safeguarded by Article 11 of the Charter.

The FCJ also points out (again citing GS Media and Reha Training) that the CJEU has previously emphasised the indispensable role played by the user and the deliberate nature of its intervention. Such an indispensable role might be missing when a hyperlink is made to a work that is freely available on another homepage. Under these circumstances, the operator of the original website decides whether the work remains available or is deleted. In the latter case, the hyperlink would lead to a dead end. In the case at hand however, the operator of the ‘new’ website, who made a copy of the work on his own server and used this copy for his website, did indeed have an indispensable role. He is in a position to decide if - and how long - the work remains available to the public via his website.

This Kat is exhausted

No exhaustion

Finally, the judges note that according to Art. 3 (3) of the InfoSoc Directive the right of communication to the public shall not be exhausted by any act of communication to the public or making available to the public. If the action of the defendant were to be considered legal, this would go against the high level of protection that is envisaged by the InfoSoc Directive (Recitals 9, 10). Authors and performers could not control the use of their works and would not be able to receive an appropriate reward for use of their works anymore.

To conclude, the FCJ judges already answered the question themselves. There must be a difference between cases that involve the making of a copy of a work, and the subsequent making available of this copy, and cases in which the ‘original’ copy is being linked to. Every other result would severely endanger author’s and performer’s rights and lead to de facto exhaustion of the Art. 3 rights.