Saturday, 17 September 2016

BREAKING: CJEU says that free Wi-Fi provider is not liable for third-party copyright infringements but may be required to password-protect its network to terminate infringements

Image result for cjeu logoWow, what a rolling coaster of emotions the past few days have been for EU-based copyright enthusiasts! 

After last week's GS Media decision [hereherehere] in Luxembourg and yesterday's copyright package in Brussels, today is back again to Luxembourg for the judgment of the Court of Justice of the European Union in Mc Fadden, C-484/14 [the decision is not yet available on the Curia website, but here's the press release[UPDATE at 11:12: the judgment is now available on the Curia website]

This blog has followed this case for a while, after reporting for the first time on this reference for a preliminary ruling from the Landgericht München I (Regional Court, Munich I, Germany) in late 2014 (and also hosting the open 'Save our open WiFi' letter penned by the Electronic Frontier Foundation in 2015).

What is this case about?

In a nutshell, this case required the CJEU to clarify who can be considered an intermediary for the sake of the ECommerce Directive and what remedies can be sought against intermediaries - notably mere conduit (access) providers - that enjoy the so called safe harbour protection ex Article 12 of the ECommerce Directive.

More specifically, as Advocate General (AG) Spzunar explained in his Opinion [here], the issues for the CJEU to address were the following:

Is a professional who, in the course of business, operates a Wi-Fi network that is accessible to the public free of charge providing an information society service within the meaning of Directive 2000/31/EC? [so, more generally: who's an intermediary within the Ecommerce Directive? A recent - non-IP - instance in which this very question was addressed is Papasavvas, an online defamation case]
To what extent may his liability be limited in respect of copyright infringements committed by third parties? [to whom the Ecommerce Directive safe harbours apply and to what extent?]
May the operator of such a public Wi-Fi network be constrained by injunction [in this case, being copyright the relevant IP right at hand, an injunction pursuant to Article 8(3) of the InfoSoc Directiveto make access to the network secure by means of a password? 
The last question raises an additional one, ie: who has to bear the costs of implementing such injunction?  As readers know, this point is not of secondary importance: for instance, in the UK, it has prompted the dissent of Briggs LJ in the recent Court of Appeal judgment in Cartier [here].

Tobias Mc Fadden
Background

This reference for a preliminary ruling was made in the context of proceedings between Sony and a person (Tobias Mc Fadden) who operates a business selling and renting lighting and sound systems for various events.

Mc Fadden owns a Wi-Fi connection that is open to anyone to use as it not protected by any password. The main reason why McFadden provides password-free free internet access is to drive traffic to his website and encourage customers to visit his shop.

In 2010 that connection was used by someone other than Mc Fadden to download unlawfully a musical work to which Sony owns the copyright. Following Sony’s formal notice, Mc Fadden sought a negative declaration from the referring court. 

This dismissed it and upheld Sony’s counterclaim, granting an injunction against Mc Fadden on the ground of his direct liability for the infringement at issue and ordering him to pay damages, the costs of the formal notice, and costs. 

Mc Fadden appealed that decision, arguing that the provisions of German law transposing Article 12(1) of the ECommerce Directive would shield him from liability for third-party infringements. 

The Regional Court held the view that Mc Fadden would not be directly liable, but rather indirectly liable according to the German doctrine of Störerhaftung [which apparently German Government wishes to abandon soon], on the ground that his Wi-Fi network had not been made secure. This court decided nonetheless to stay the proceedings and seek guidance from the CJEU on the issues outlined above.

The AG Opinion

In his Opinion on 16 March 2016 AG Szpunar held the view that to determine whether one could be regarded as an information society service/ISP/intermediary [the AG suggested that these terms are synonyms] one should consider the nature - economic or not - of the service offered. 

He concluded that the provision of internet access is normally to be regarded as an economic activity, even if such provision is for free and an ancillary service to someone's principal activity.

Having held that someone like Mc Fadden should be regarded as an intermediary, the AG found that it follows that the safe harbour in Article 12 of the Ecommerce Directive applies. 

In any case, the presence of a safe harbour does not prevent a rightholder from seeking an injunction against an ISP: “it is clear from a combined reading of paragraphs 1 and 3 of Article 12 of Directive 2000/31 that the provisions in question limit the liability of an intermediary service provider with respect to the information transmitted, but do not shield him from injunctions.” [para 69]

While injunctions against intermediaries can be sought independently from a finding of civil liability [para 86], their content cannot go as far as requiring its addressee to terminate or protect the internet connection by means of a password or examine all communications transmitted through it.

As regards the hot potato issue of costs, according to the AG held that, since an intermediary cannot be held liable for an IP infringement committed by a user of its services, as a result cannot be asked to bear pre-litigation and court costs. Holding otherwise "could potentially have the same punitive effect as an order to pay damages and could in the same way hinder the development of the intermediary services in question." [para 77]
 
The AG also held that the safe harbour regime  "precludes the making of orders against intermediary service providers not only for the payment of damages, but also for the payment of the costs of giving formal notice or other costs relating to copyright infringements committed by third parties as a result of the information transmitted." [para 80 - as I noted herein my own opinion, the phrase “other costs” might include the costs of implementing an injunction, including a blocking injunction].

Today's decision

It appears that in today's decision the CJEU followed the AG Opinion on some points, but took a different approach on others. One of the most significant points of departure is that, unlike the AG, the Court held that a provider of password-free, free Wi-Fi may be asked to password-protect its network to bring infringements to an end.

According to the relevant press release:

"In today’s judgment, the Court holds, first of all, that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the directive. 

Next, the Court confirms that, where the above three conditions are satisfied [ie: (i) the provider of the mere conduit service must not have initiated the transmission; (ii) it must not have selected the recipient of the transmission; and (iii) it must neither have selected nor modified the information contained in the transmission], a service provider such as Mr Mc Fadden, who providers access to a communication network, may not be held liable. Consequently, the copyright holder is not entitled to claim compensation on the ground that the network was used by third parties to infringe its rights. Since such a claim cannot be successful, the copyright holder is also precluded from claiming the reimbursement of the costs of giving formal notice or court costs incurred in relation to that claim. 

However, the directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers. [but, in light of the above, who bears the costs of implementing an injunction?]

Lastly, the Court holds that an injunction ordering the internet connection to be secured by means of a password is capable of ensuring a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users. The Court notes, in particular, that such a measure is capable of deterring network users from infringing intellectual property rights. In that regard, the Court nevertheless underlines that, in order to ensure that deterrent effect, it is necessary to require users to reveal their identity to be prevented from acting anonymously before obtaining the required password.

However, the directive expressly rules out the adoption of a measure to monitor information transmitted via a given network. Similarly, a measure consisting in terminating the internet connection completely without considering the adoption of measures less restrictive of the connection provider’s freedom to conduct a business would not be capable of reconciling the abovementioned conflicting rights."

This looks like a truly landmark decision. A more detailed analysis will be provided as soon as the judgment is made available: stay tuned! 

BREAKING: Commission unveils new copyright package

Image result for breaking newsFurther to the proposal for a regulation on cross-border portability of online content services in late 2015, the European Commission has just unveiled its new set of proposals to ameliorate EU copyright and achieve a fully functioning digital single market.

These - among other things - include proposals for a new directive on copyright in the Digital Single Market and a regulation on certain online transmissions of broadcasting organisations and retransmissions. Both instruments, if adopted in their current form, will have a deep impact on the EU copyright framework, particularly with regard to online uses of copyright works, responsibilities of hosting providers, users’ freedoms, and authors’ contracts.
A more detailed analysis of relevant documents will be provided soon: stay tuned!

But here's an immediate question: Is the new package different from the leaked versions 
[here and here]? Well, yes, to some extent.

Taking the proposed directive, for instance, it appears that:

(1) in relation to the so called 'value gap' [Recitals 38 and 39, and Article 13], the overall tone appears more stringent than the one used in the version that this very blog leaked a few days ago. 

In particular, Recital 38 of the actual proposal requires any hosting providers that give access to large amounts [what's the threshold?] of copyright works to "take appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies [read: filtering technologies]. This obligation should also apply when the information society service providers are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC." 

Commissioners Ansip and Oettinger 
How can this be achieved without also reforming Article 15 of said directive is unclear in my opinion. Yet, regrettably the proposed directive fails to address what relationship it has with Directive 2000/31 ...

(2) in relation to the new press publishers' right [Article 11], while the version leaked a few days ago spoke of 'news publications', the actual proposal prefers the [apparently broader] term 'press publications'. 

In addition, Recital 34 in the proposal states that the right granted to press publishers "should have the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC, insofar as digital uses are concerned. They should also be subject to the same provisions on exceptions and limitations as those applicable to the rights provided for in Directive 2001/29/EC including the exception on quotation for purposes such as criticism or review laid down in Article 5(3)(d) of that Directive" 

All in all, while this Recital appears possibly aimed at being GS Media-proof, it appears odd that reference is made to the making available right, instead of the broader communication to the public right, of which the making available right is part. In addition, GS Media was about the right of communication to the public right, not the making available right.

Follow the official presentation

You can follow the presentation of the content of this new copyright package by Commissioners Ansip and Oettinger this afternoon at 15:15 CET by using this GS Media-approved link.

Wish to discuss all this?

I am organising two new events to review and discuss all these recent developments, including the feasibility (and desirability as such) of proposed Commission action.

  • The first event will take place on 5 October 2016 at the beautiful Tower Bridge offices of RPC. Places are limited (with some tickets available for full time students), to provide everybody with the opportunity to discuss fully the present and future of EU copyright. You can find further details and register here.
  • The second event will be streamed on YouTube on 6 October 2016: participants can decide to follow it live or watch it at any later time of their choice. This second option is for those who are unable to attend the event on 5 October 2016, eg because based outside London. You can find further details and register here.
[Originally published on The IPKat on 14 September 2016]

Monday, 12 September 2016

Linking after GS Media ... in a table

Readers may remember that a few months ago I published a table that I had prepared for my students at the University of Southampton, attempting to summarise the position of the Court of Justice of the European Union as regards linking to protected content.

Further to this week's GS Media decision [here and here], here's an updated version of my 'linking table' [check out also this useful tool prepared and shared by Martin Husovec the same day of the GS Media decision]:



[Originally published on The IPKat on 10 September 2016]

Hyperlinks and communication to the public: early thoughts on the GS Media decision

Image result for cjeuAs reported in this morning's (super-)breaking news post, the Court of Justice of the European Union (CJEU) has finally issued its decision in GS Media, C-160/15.

The Court held that Article 3(1) of the InfoSoc Directive "must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed."

In other words, the provision of a hyperlink on a website to a copyright work that is (1) freely accessible and (2) was published without the author’s consent on another website, does not constitute a ‘communication to the public’, as long as the person who posts that link (i) does not seek financial gain and (ii) acts without knowledge that those works have been published illegally.

This conclusion is fairly bold and, while clearly aimed at 'not breaking the internet', might not have solved all the problems created raised by Svensson [Katposts here]. Quite the contrary, it might have brought new issues into the already fantastic - yet complicated - world of the communication to the public right.

The scope of the question(s) referred

First, the Court decided to group together the three questions referred by the Dutch Supreme Court, saying that - in a nutshell - they concerned "whether, and in what possible circumstances, the fact of posting, on a website, a hyperlink to protected works, freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29." [para 25]

Moving on: notion of 'communication to the public'

As usual, the CJEU began its analysis with a general discussion of the nature [preventative] of the communication to the public right [para 28]. It mentioned the lack of a definition in the body of the InfoSoc Directive and hence the need to refer to the objectives pursued by this piece of EU legislation: high level of protection of authors [para 30] but also a fair balance of contrasting rights and interests, as also protected by the Charter of Fundamental Rights of the European Union [para 31]

The Court then recalled that the concept of ‘communication to the public’ includes two cumulative criteria: (1) an ‘act of communication’ of a work and (2) the communication of that work to a ‘public’. This said, it noted how a specific assessment is to be undertaken in specific instances by considering a number of complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another. 

Among other things, such criteria include:
  • the indispensable role played by the user and the deliberate nature of its intervention; 
  • a communication using specific technical means, different from those previously used or, failing that, to a ‘new public’; 
  • the profit-making nature of the communication.
According to the Court it is in the light, in particular, of those criteria that a situation like that one at issue in the background proceedings should be assessed.

Svensson as ... Julius Caesar?
Svensson and BestWaterTu quoque, Brute, fili mi!

Having exhausted its general overview of the communication to the public right, the CJEU turned to the most immediate and relevant decisions in the context of hyperlinks: Svensson and BestWater.

And here it said that from those cases it does not follow that "posting, on a website, hyperlinks to protected works which have been made freely available on another website, but without the consent of the copyright holders of those works, would be excluded, as a matter of principle, from the concept of ‘communication to the public’" [para 43].

Then, with quite an admirable twist [worthy of a real Brutus], it trashed scaled down the relevance of both judgments, by saying that those decisions [merely?] confirm the importance of the rightholder's consent under Article 3(1) of the InfoSoc Directive, due to the preventative nature of the communication to the public right.

However, they do not really go as far as suggesting that, lacking consent, a link would amount to an unathorised act of communication to the public. And the reasons for this scaling-down of Svensson and BestWater [which, in my opinion, indeed suggested this] are practical: to avoid 'breaking the internet'.

The Court noted in fact that:
  1. the internet is of particular importance to freedom of expression and of information, and hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information [para 45]
  2. it may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet. Such ascertaining is all the more difficult where those rights have been the subject of sub-licenses. Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it. [para 46]
So, how to 'save' the internet without going too far? With creativity
To overcome interpret correctly Svensson in the present context, the Court brought into 
the picture the profit-making nature criterion and also added something apparently 'Made in Luxembourg': the subjective state of mind of the hyperlinker [profit-making nature and intention appear to require cumulative consideration].

Image result for made in luxembourgIn fact, according to the CJEU [paras 47-48], "[f]or the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly [?] necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder. Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it ... does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention."

The same is not however true for:

  • a person who knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet [para 49], for example owing to the fact that he was notified thereof by the copyright holders;
  • Links that allow users of the website on which they are posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers [para 50]
In addition the Court adds a presumption [apparently iuris tantum, ie rebutable] that [para 51] "when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder." 

In the case at hand, GeenStijl, provided the hyperlinks for profit, yet knowing that the photos had been published without Sanoma's permision. A clear no-no scenario, concluded the Court [para 54].

A new notice-and-takedown system?

As promptly [and, in my opinion, correctly] observed on Twitter by my former student Adrian Wright, the CJEU appears also to have created a new notice-and-takedown system ... for primary liability. 

At para 53 the Court wrote that "rightholders, in all cases, have the possibility of informing such persons [who? not only those who have published the copyright work without the rightholder's consent but seemingly also those who have 'published' the hyperlinks] of the illegal nature of the publication of their work on the internet and of taking action against them if they refuse to remove that link, and those persons may not rely upon one of the exceptions listed in Article 5(3) [of the InfoSoc Directive]".

All in all: CJEU as law-maker

Much will be written on this GS Media judgment, because - as a matter of fact - it marks a departure from previous case law on the communication to the public right.

First, this is so for to the emphasis posed on the profit-making nature criterion. Not many months ago in, Reha Training [here], the CJEU (in a Grand Chamber composition) had held that, although in some cases the profit-making nature (or its lack thereof) of the act in question has been taken into account, this is not a decisive factor to classify an act as one of communication to the public. Now this no longer appears so true ...

Secondly, and possibly most importantly, the Court has seemingly carried out a de facto harmonisation of the subjective element in (primary) copyright infringement cases, thus going well beyond the wording of relevant directives. 

It would now seem that, at least in hyperlinking cases, primary copyright infringement should no longer be a matte of strict liability but rather, and similarly to the case of secondary liability, the defendant's state of mind should be considered. This may pose problems for the copyright systems of some Member States, including - at least until Brexit happens - the UK.  

[Originally published on The IPKat on 8 September 2016]

SUPER-BREAKING: (Liberal) CJEU says that linking to unauthorised content is NOT a communication to the public unless one seeks financial gain and has knowledge of illegality

The day everybody had been waiting for - at least since 13 February 2014 [that, of course, was the date of the Svensson decision, on which see Katposts here] - has finally arrived.

This morning the Court of Justice of the European Union (CJEU) has issued its [fairly liberal] judgment in GS Media [not yet available on the Curia website, but here's the press release][UPDATE AT 10:51: THE TEXT OF THE JUDGMENT IS AVAILABLE HERE]

This was a reference for a preliminary ruling from the Dutch Supreme Court. It had been made in the context of proceedings between Sanoma (the publisher of Playboy magazine) and GS Media, concerning the publication by the latter on a website that it operates (GeenStijl.nl) of hyperlinks to other websites hosting unpublished photographs of Dutch starlet Britt Dekker. These photographs were due for publication in a forthcoming issue of Playboy.

Background

More specifically, in 2011 [prior to the publication of the Playboy issue in question] GS Media published a report with the title ‘[obscenity] leaked! Nude photos ... Dekker’. The report also included part of one of the photographs in the top left-hand corner (‘the cutout’). The report ended with the following words: ‘And now the link with the pics you’ve been waiting for. Whoever [obscenity] first, [obscenity] first. HERE. ...’. By clicking on a hyperlink, indicated by ‘HERE’, readers were directed to an Australian data-storage website called Filefactory.com [where the photographs appeared to be freely accessible, although this was not entirely clear]. By clicking on the following hyperlink, they could open a new window which contained the button ‘DOWNLOAD NOW’. By clicking on the button, the readers opened a file in zip format containing 11 files in pdf format, each of which contained one of the photographs.

Despite Sanoma's demands, GS Media refused to remove the hyperlink in question (although the photographs were removed from the Filefactory.com website), and later on published two further reports with new hyperlinks to Dekker's photographs.

GS Media was successfully sued before the Amsterdam District Court and the Amsterdam Court of Appeal, although these courts considered different aspects. The former held that by posting those hyperlinks, GS Media’s conduct had been unlawful because it encouraged visitors to GeenStijl to view the photographs illegally posted on Filefactory.com which, without those hyperlinks, would not have been easy to find. In contrast, the Court of Appeal held that, on the one hand, GS Media had infringed copyright by posting a cut-out of one of the photographs on the GeenStijl website but, on the other hand, had not made the photographs available to the public by posting the hyperlinks on its website. 

The CJEU reference

The decision of the Court of Appeal was appealed before the Supreme Court, which decided to stay the proceedings and seek guidance from the CJEU on whether the provision of a hyperlink to a work made available on a certain website without the initial consent of the relevant rightholder and where it is freely accessible is to be regarded as an act of communication to the public.

More specifically, the Dutch Supreme Court asked the CJEU whether:
  • Article 3(1) of the InfoSoc Directive must be interpreted as meaning that the provision on a website of a hyperlink to another website operated by a third party, which is accessible to the general internet public and on which works protected by copyright are made available to the public, without the authorisation of the copyright holder constitutes an act of communication to the public.
  • The fact that the person who posts the hyperlink to a website is or ought to be aware of the lack of consent by the copyright holder for the initial communication of the works on that website is important for the purpose of Article 3(1) of this directive. 
  • The fact that a hyperlink has facilitated access to the works in question is relevant in accordance with Article 3(1) of this directive.
Image result for ag wathelet
AG Wathelet
The AG Opinion

In his Opinion on 7 April 2016 [here], Advocate General (AG) Wathelet held that the provision of a hyperlink to a work made available on a certain website without the initial consent of the relevant rightholder and where it is freely accessible is NOT be regarded as an act of communication to the public. 

The AG recalled that in Svensson the CJEU held that for there to be 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. According to the AG this approach is not correct in relation to hyperlinks, also because in FAPL [herethe CJEU held that without the intervention, for example, of a hotel to offer a television signal in its rooms via television sets, the work would not have been accessible to the hotel’s customers. It would follow that in order to establish an act of communication, the intervention of the ‘hyperlinker’ must be vital or indispensable in order to benefit from or enjoy works.

The AG also found that it is not important whether the person who posts on a website a hyperlink to another website on which copyright works are freely accessible to the public is or ought to be aware that the relevant rightholder has not authorised the initial communication. 

More generally, the AG suggested that linking should not fall within the scope of copyright protection.

Today's judgment

According to the official release:

“In today’s judgment, the Court declares that, in accordance with the directive concerned [the InfoSoc Directive], Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works. At the same time, that directive seeks to maintain a fair balance between, on the one hand, the interests of copyright holders and related rights and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information, as well as the general interest.

The Court recalls its earlier case-law in accordance with which the concept of ‘communication to the public’ requires an individual assessment, which must take account of several complementary criteria. Those criteria include, first, the deliberate nature of the intervention. Thus, the user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, in order to give access to a protected work to its customers. Secondly, the concept of the ‘public’ covers an indeterminate number of potential viewers and implies a fairly large number of people. Thirdly, the profit-making nature of a communication to the public is relevant.

The Court specifies that its earlier case-law concerned only the posting of hyperlinks to works that have been made freely available on another website with the consent of the rightholder, and that it cannot, therefore, be inferred from that case-law that the posting of such hyperlinks would be excluded, as a matter of principle, from the concept of ‘communication to the public’ when the works at issue have been published on the other website without the rightholder’s consent.

As regards that latter situation, the Court emphasises, however, that the internet is of particular importance to freedom of expression and of information and that hyperlinks contribute to its sound operation and to the exchange of opinions and information as well. In addition, it accepts that it may prove difficult, in particular for individuals who wish to post such links, to ascertain whether the works involved are protected and, if necessary, whether the copyright holders of those works have consented to their publication on the internet.

Having regard to those circumstances, the Court holds that, for the purposes of the individualised assessment of the existence of a ‘communication to the public’, it is necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know that that work had been published on the internet without the consent of the copyright holder. Indeed, such a person, does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet.

In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally published, for example owing to the fact that he was notified thereof by the copyright holders, the provision of that link constitutes a ‘communication to the public’. The same applies if that link allows users to circumvent the restrictive measures taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers.

Furthermore, when hyperlinks are posted for profit, it may be expected that the person who posted such a link should carry out the checks necessary to ensure that the work concerned is not illegally published. Therefore, it must be presumed that that posting has been done with the full knowledge of the protected nature of the work and of the possible lack of the copyright holder’s consent to publication on the internet. In such circumstances, and in so far as that presumption is not rebutted, the act of posting a clickable link to a work illegally published on the internet constitutes a ‘communication to the public’.


In the present case it is undisputed that GS Media provided the hyperlinks to the files containing the photos for profit and that Sanoma had not authorised the publication of those photos on the internet. It appears from the facts, as stated in the Hoge Raad’s request for a preliminary ruling, that GS Media was aware of the illegal nature of that publication and that it cannot, therefore, rebut the presumption that it posted those links in full knowledge of the illegal nature of that publication. Subject to the checks to be made by the Hoge Raad, by posting those links, GS Media therefore effected a ‘communication to the public’.

Image result for event
How the rapid response
linking event
is going to be
Rapid response seminar

Today's CJEU judgment marks another milestone in the history of CJEU copyright case law. 

While a more detailed analysis will be provided as soon as the judgment become available, don't forget the rapid response seminar that the IPKat is organising together with Bristows in the afternoon of 13 September!

Here's the programme:  
  • 5:30 Registration
  • 6:00 Panel discussion
  • 7:30 Drinks and canapés
The format will be that of an informal panel discussion, in which panelists and attendees alike will share their views.

Moderated by Mark Brown (Bristows), the panel will feature Aimee Nisbet (Hearst Corporation) Eleonora Rosati (University of Southampton and IPKat), Nicholas Saunders (Brick Court Chambers), and Theo Savvides (Bristows).

Further details can be found here, and you can register here.

[Originally published on The IPKat on 8 September 2016]

SUPER KAT-EXCLUSIVE: Here's text of draft Communication on promoting a fair and efficient European copyright-based economy

The pieces of the (copyright) puzzle are being composed day after day. 

After the leaked draft version of the Commission Staff Working Document - Impact Assessment on the modernisation of EU copyright rules and yesterday's Kat-exclusive draft version of the forthcoming Directive on copyright in the Digital Single Market, today - thanks to another Katfriend - is the turn of the draft Communication from the Commission on Promoting a fair and efficient European copyright-based economy in the Digital Single Market.

The Communication, together with the Impact Assessment, the Directive, and a proposal for a Regulation [leaked here] containing a review of the SatCab Directive [here and see further below] should be part of the copyright package that the Commission will unveil later this month.

A new Regulation

This new Communication will accompany the Directive on copyright in the Digital Single Market, and also "a proposal for a Regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programs".

More specifically, the rules in the forthcoming Regulation, "inspired by the ones existing in the Satellite and Cable Directive [ie the principle of country of origin], will make the clearance of rights simpler and faster for certain online services by broadcasters as well as IPTV and similar re-transmission services. These rules should be seen as a facilitating mechanism to help the evolution of the market and provide better access to works across borders in order to promote consumer choice, dissemination of European productions as well as cultural diversity." [and possibly also assimilate OTT services to traditional broadcasters ...]

Freedom of panorama ... to be left to Member States

The draft Communication also tackles the content of the Directive on copyright in the Digital Single Market and, in relation to exceptions and limitations, it states that "[f]ollowing up on the analysis of the [still unknown] results of the public consultation on the "panorama exception", the Commission confirms the relevance of this exception. 

While the Commission does not intend to make it mandatory at this stage, it "strongly recommends all Member States to do so."

'Ancillary copyright' and value gap

With regard to the new right in publications envisaged by the draft Directive on copyright in the Digital Single Market [Article 11], the draft Communication states that this "will give news publishers legal certainty and additional bargaining power in relation to online services using and enabling access to their content."

With regard to the so called 'value gap' [addressed by the draft Directive in Article 13 and Recital 39], the measures envisaged "will also reinforce the position of right holders to negotiate and be remunerated for the online exploitation of their content by online services storing and giving access to large amounts of content uploaded by their users".

Fair remuneration for authors and performers

With regard to this issue [addressed fairly loosely in the draft Directive, to be honest], "authors and performers will benefit from increased transparency on the exploitation of their works and performances and from improved capability to receive appropriate remuneration".

Online IPR enforcement

In relation to this issue, the draft Communication clarifies that, further to the presentation of the outcome of its evaluation in Autumn 2016, the Commission will propose "the necessary amendments to the legislative framework" in due course.

Finally

The draft Communication announces that the Commission will work towards ensuring a wider access to online dissemination of European works, and a more competitive and sustainable European audiovisual industry.

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The text of the draft Communication is available here.

[Originally published on The IPKat on 1 September 2016]