Thursday, 27 October 2016

Linking to unlicensed content: Swedish court applies GS Media

Is unauthorised linking to unlicensed content an act of communication to the public within Article 3(1) of the InfoSoc Directive and, if so, a potential copyright infringement?

Readers will promptly recall that last month the Court of Justice of the European Union (CJEU) addressed this very question in GS Media, C-160/15 [discussed herehereherehere], and concluded that - to answer - one must not only consider the classic duo (1) act of communication + (2) to a public, but also "several complementary criteria, which are not autonomous and are interdependent" [para 34]. These, according to the CJEU, include whether the posting of hyperlinks is carried out for profit and whether the person who posts the link has knowledge of the unauthorised character of the content linked to.

All in all, the situation can be summarised (simplifying) as follows:

After GS Media, the question has become: how to apply this CJEU judgment in practice?

In what appears to be the first national application of GS Media, the answer comes from Sweden. On 13 October last the Attunda tingsrätt (Attunda District Court) - in the context of small claims proceedings within Regulation 861/2007 - ruled against a French media company for providing a link to a video that had been uploaded onto YouTube [where it is still available] without the permission of the copyright owner/claimant.

Here's how it went.


In 2012 the claimant (Rebecka Jonsson) filmed a bungee jumping session gone wrong in Africa. 

Someone (not Ms Jonsson) uploaded the video on YouTube. On 9 January 2012 the YouTube video was embedded on the L'Avenir 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. 

In her action before the Attunda District Court, Ms Jonsson claimed that L’Avenir had infringed copyright in her video by both embedding it on its website and publishing a frozen still of the video. She sought damages for EUR 1931 against the defendant, as well as award of litigation costs.

The Swedish court stated at the outset that the video is protected by Swedish copyright law, and noted how the circumstance for which the claimant’s video was (and still is) available on YouTube does not mean that no copyright infringement has occurred. This is because the claimant had not authorised the publication of the video on YouTube, nor - apparently - anywhere else on the internet.

Linking to unlicensed content

Considering whether the provision of an embedded link to content whose publication on a third-party site (ie YouTube) has not been authorised would amount to a copyright infringement, the court noted that there is no Swedish case law regarding the question whether linking can be considered an act of communication to the public [this seems to suggest that, not only was the Svensson Swedish instalment eventually settled, but also the C More Swedish proceedings were? Although C More was about the right of making available to the public rather than communication to the public, any decision by Swedish courts could have arguably provided some guidance].

This said, the court referred to the InfoSoc Directive and relevant CJEU case law on linking, notably Svensson and … GS Media.

Extreme bungee jumping 
In relation to the latter the court recalled the presumption [iuris tantum, ie rebuttable] that the CJEU discussed at para 51 of the decision: 

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 such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.”

According to the court, it was “obvious” that L’Avenir had published the link to the claimant’s YouTube video with the intention of pursuing a profit [yet the court did not really explain what evidence supported the conclusion that in this case the defendant had a profit-making intention]. According to the court, L’Avenir had not been able to demonstrate that it had no knowledge of the unlicensed character of the video embedded on its website. Hence, L’Avenir was found to have infringed the claimant’s copyright by linking to the YouTube video without Ms Jonsson’s permission.

The frozen still

Turning to the issue of the reproduction of a frozen still [you click on it, and the embedded video can be played] from the claimant’s video on the L’Avenir website, the court ruled that this amounted to an infringement of copyright for reproducing part of her work [when reading the judgment, I was a bit surprised not to see any discussion of whether reproducing a single frame from a video could be regarded as the reproduction of a protectable, ie sufficiently original, part of a work (the whole video in this case) in at least an Infopaq sense].

Finally, moral rights

The court also ruled that, by failing to acknowledge the name of author of the video and frozen still, the defendant had also infringed the claimant’s moral right of attribution pursuant to section 3 of the Swedish Copyright Act.

Linking gone wrong:
trying to escape liability

The judgment can now be appealed, and it will be interesting to see whether L’Avenir decides to do so. 

Overall, the judgment seems to adopt a fairly strict interpretation of GS Media.

First, it is unclear in what sense the defendant published the link to the claimant’s work to pursue a profit. Although in favour of the Swedish court’s approach there is the fact that the CJEU judgment is very unclear on this point as well, it might appear that getting the label “profit-making intention” is VERY easy and – with it – the presumption of knowledge and … prima facie liability.

Secondly, the judgment does not contain any discussion of whether one or more copyright exceptions would apply to this case [news reporting? quotation? criticism/review?]. Yet, the CJEU in GS Media said that such considerations MUST be undertaken.

Thirdly, it is unclear both (1) whether the claimant approached the defendant to notify it of the unlicensed nature of the YouTube video and (2) whether the claimant asked YouTube to take down the video in the first place.

The latter point leads to a final question. On the one hand, it may seem that link providers are seen and treated somewhat with suspicion: profit-making objectives may be often considered present, and - with them - the duty to make sure links are being provided to licensed sources. On the other hand, copyright owners seem to enjoy a more favourable treatment: in this case, it was not even required to discuss whether the claimant had notified the defendant about the unlicensed nature of the video linked to or even attempted to have the video taken down by YouTube [YouTube, not a prima facie ‘rogue’ site]

But do copyright owners have any duty to police what use is being made of their works, or can they just expect others to behave in a way that is respectful of their rights? In this sense, an analogy with trade mark law (and ‘genericide’) can be drawn. In his Opinion in Backaldrin Österreich The Kornspitz Company GmbH, C-409/12, Advocate General Cruz Villalón had held the view that the owner of a trade mark is required to be “vigilant with regard to the protection of his trade mark” [para 83]Can the same be said also for copyright owners, or does such duty of vigilance only apply to third parties, including link providers?

[Originally published on The IPKat on 27 October 2016]

Tuesday, 25 October 2016

AG Szpunar says that the notion of "places accessible to the public against payment of an entrance fee" does not apply to hotel rooms

AG Szpunar
Under the Rental and Lending Rights Directive, among other things, broadcasting organisations have the exclusive right to authorise or prohibit the communication to the public of their broadcasts in places accessible to the public against payment of an entrance fee. 

More specifically, Article 8(3) of that directive provides that:

"Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee."

Are hotel rooms included in the notion of "places accessible to the public against payment of an entrance fee"?

This is the issue on which the Handelsgericht Wien (Commercial Court, Vienna) is seeking guidance from the Court of Justice of the European Union (CJEU) in Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH, C-641/15.

This morning Advocate General (AG) Szpunar in his Opinion answered the question in the negative, holding that "the communication of a television or radio signal through television sets installed in hotel rooms does not constitute communication to the public of the broadcasts of broadcasting organisations in a place accessible to the public against payment of an entrance fee within the meaning of that provision."


This reference for a preliminary ruling has been made in the context of litigation between the operator of a hotel in Grossarl [whose rooms, unsurprisingly, are furnished with TV sets which enable broadcasts from a variety of broadcasters to be received by means of a communal aerial belonging to the hotel] and an Austrian collecting society, over the former's refusal to pay relevant fees pursuant to the national implementation of Article 8(3) of the Rental and Lending Rights Directive.

According to the hotel operator, hotel rooms are not places accessible to the public against payment of an entrance fee within the meaning of the provisions transposing Article 8(3) of the Rental and Lending Rights Directive. 

The Commercial Court, Vienna, was not sure about the correct interpretation of Article 8(3) of that directive, and so asked the CJEU the following:

"Is the condition of “against [payment] of an entrance fee” laid down in Article 8(3) of Directive [2006/115] satisfied where;
–      through the TV set made available in each room of a hotel, the hotel operator provides access to the signal for various television and radio channels (“hotel room TV”), and
–      for use of the room (including hotel room TV), the hotel operator charges a fee per room per night (room rate) which also includes use of the TV set and the television and radio channels to which access is thereby provided?"
Hotel life: not all about TV
The AG Opinion

In order to address the question referred by the Austrian court, AG Szpunar addressed in turn the notions of 'communication to the public' and ‘places accessible to the public against payment of an entrance fee’. 

While holding the view that the provision of a TV or radio signal by means of TV sets installed in hotel rooms must be regarded as falling within the notion of ‘communication to the public’, the AG concluded for the inapplicability of Article 8(3) of the Rental and Lending Rights Directive to the case at hand.

The notion of 'communication to the public'

The AG noted that the CJEU has already ruled that installing TV sets in hotel rooms and providing a television signal via them constitutes communication to the public within the meaning of both Article 3(1) of the InfoSoc Directive [Rafael Hoteles] and Article 8(2) of the Rental and Lending Rights Directive [PPI (Ireland), noted here].

However the object and scope of protection laid down in those provisions is different from that in Article 8(3) of the Rental and Lending Rights Directive. In particular, for a broadcast to exist it requires an airing and thus a form of communication to the public. Therefore, unlike in the case of works or performances or recordings thereof, communication to the public is not only one of the forms of using broadcasts but also an inherent element of the actual object of protection [para 15].

Despite the particular nature of radio and TV broadcasts, the AG rejected the idea [para 16] that the term 'communication to the public' in the context of providing a signal for TV sets installed in hotel rooms should be given a different meaning. He thus concluded the provision of a TV or radio signal by means of TV sets installed in hotel rooms must be regarded as communication to the public of broadcasts from broadcasting organisations within the meaning of Article 8(3) of the Rental and Lending Rights Directive.

This said, he noted however [para 17] that "the EU legislature limited the exclusive right of broadcasting organisations to cases of communication to the public in places accessible to the public against payment of an entrance fee."

The notion of ‘places accessible to the public against payment of an entrance fee’

Turning to the consideration whether hotel rooms are to be regarded as ‘places accessible to the public against payment of an entrance fee’, the AG stated that the answer could be in the affirmative ... but only if one considered "the actual expression ‘places accessible to the public against payment of an entrance fee’, in isolation from the drafting history, purpose and role of Article 8(3) of [the Rental and Lending Rights Directive] in the system of copyright and related rights" [para 19].

History and rationale of the provision

If one takes instead into account the drafting history of the Rental and Lending Rights Directive, the conclusion is rather different.

The AG recalled [para 22] that Article 8(3) was modelled on Article 13(d) of the Rome Convention and intended to have the same scope. In the Rome Convention the notion of ‘places accessible to the public against payment of an entrance fee’ is that of places "where a fee is levied precisely for the possibility of viewing a television broadcast communicated to the public at that place" [para 24]The reason is that Article 13(d) in the Rome Convention was linked to the practice, which was common in an earlier period of television development, of organising collective showings of television broadcasts, entry to which was subject to a fee. Accordingly, [para 25] when we not are dealing with a fee directly linked to the possibility of viewing a television broadcast, and fees are merely being levied for other services, such as catering services, that situation does not fall within the scope of the term ‘places accessible to the public against payment of an entrance fee’ within the meaning of Article 13(d) of the Rome Convention." 

Buying a beer: NOT
a mandatory fee to watch sports on TV
The AG concluded [para 26] that "a fee for a room in a hotel is not a fee for the possibility of viewing television broadcasts there, but for accommodation. Making television broadcasts available is merely an additional service which a customer expects, in the same way as running water, drinks and an internet connection." 

The AG also rejected the argument that the accessibility of TV set in a room makes it possible to raise the price of the accommodation and consequently part of that price must be regarded as a fee for the possibility of viewing TV broadcasts. To explain this point, the AG drew an analogy with catering establishments and held that [para 30] "[t]he owner of a catering establishment fitted with a television set can also raise the price of his services by dint of that fact, particularly during the broadcasting of programmes of particular interest to the public, such as sports broadcasts. It should be recalled that ordering a place at a table in that establishment will not normally be possible without ordering the food or drink on offer there. That does not mean, however, that the price of a glass of beer can be regarded as a fee for viewing that broadcast and the establishment can be regarded as accessible to the public against payment of an entrance fee within the meaning of Article 13(d) of the Rome Convention. A fee for an accommodation service in a hotel room is precisely the same in nature."

Also applicable under current technical and market conditions

The AG held that such a conclusion based on the history and rationale of the Rome Convention would be also applicable in today's conditions. 

While "a dynamic interpretation of the provisions of law, which is capable of adapting the wording thereof to the changing conditions in fact and thus allowing the objective sought by those provisions to be attained" is necessary [para 35], the AG concluded that no change is needed regarding the interpretation of Article 8(3) of the Rental and Lending Rights Directive. This is so because:
  1. Public showings of TV broadcasts have not disappeared;
  2. "[A] dynamic interpretation of the provisions of law is justified only on condition that it takes account of the objective which the legislature sought to attain in laying down those provisions and serves to realise that objective in changed conditions, but not to replace it with another objective." [para 37]

This is another carefully drafted and thoughtful opinion of AG Szpunar which bears signifcant points of resemblance with the approach taken in his earlier Opinion in Vereniging Openbare Bibliotheken v Stichting Leenrecht, C-174/15 [noted here].

Readers will recall that this reference from The Netherlands [in progress] has arisen in the context of proceedings brought by the association of Dutch public libraries which, contrary to the position of Dutch government, believes that libraries should be entitled to lend electronic books included in their collections according to the principle "one copy one user". 

Similarly to today's Opinion, also there AG Szpunar stressed the importance of interpreting relevant provisions of EU law in light of their history and rationale, but also - in order to maintain the latter unaltered over time – the need to adopt a dynamic interpretation of legal norms, if changes in circumstances and technology require so. 

[Originally posted on The IPKat on 25 October 2016]

Sunday, 23 October 2016

The new French law targeting "automated image referencing services": does EU law allow it?

Image Search for IPKat
As reported by this blog [herehere and here], earlier this year France adopted a law [Loi No 2016-925 on freedom of creation, architecture and cultural heritage] which - among other things - introduced new provisions [Articles L 136-1 to 136-4] into the Code de la propriété intellectuelle (CPI) to regulate the exercise of the exclusive rights of reproduction and representation vis-à-vis automated image referencing services. 

The content of the new provisions

As explained by Brad Spitz in a post published on the Kluwer Copyright Blog, "the new provisions will apply to ‘automated image search services’, which Article L.136-1 IPC defines as any online public communication service that reproduces and makes available to the public for purposes of indexing and SEO, plastic, graphic or photographic works, collected in an automated way from online public communication services (i.e. internet websites). In other words, these provisions target search engine services like Google Images."

Spitz also adds that Article L.136-1 IPC specifies that the images have to be ‘reproduced and made available’ by the image search services. This suggests that an act of reproduction is needed in order to trigger the entire mechanism envisaged by Loi No 2016-925. Lacking reproduction, no permission would be needed.

But: permission from whom? Article 136-2(1) CPI answers that, by saying that the publication of a plastic artwork, graphic or photographic work by an online communication service will be now subject to the consent - not of authors - but rather one or more collecting societies appointed to this end by the French Ministry of Culture.

Readers will remember that on this blog I have already expressed some doubts regarding the compatibility of this new legislative initiative with EU law. In particular, three main questions come to my mind once again.

1) A deprivation of rights?

The first question is whether a mechanism by which relevant authors are ab initio deprived of their right to authorise or prohibit the reproduction and making available of their works through online referencing systems [appointed collecting societies will instead have such right] is in line with EU copyright law, notably the InfoSoc Directive.

Collecting societies are not included among relevant categories of rightholders in this piece of EU legislation. Further to the decision of the Court of Justice of the European Union (CJEU) in Reprobel [here], it is questionable whether such a departure from the so called author principle is allowed by the InfoSoc Directive [and France may not be the only instance ...].

This conclusion is strengthened by the Opinion of Advocate General (AG) Wathelet [here] in the pending reference in Soulier [the decision is due in a few weeks' time, 16 November 2016]. The AG stated [paras 38-39, emphasis added] that: 

Were you thinking of doing as you please?
"Article 2(a) and Article 3(1) of Directive 2001/29 require the prior express consent of the author for any reproduction or communication to the public of his work, including in digital format. That consent constitutes an essential prerogative of authors.
In the absence of any derogating EU legislation, the author’s express and prior consent for the reproduction or communication to the public of his work cannot be eliminated, assumed or limited by substituting it with tacit consent or a presumed transfer which the author must oppose within a fixed time limit and in accordance with conditions laid down by national law. It follows that national legislation like the decree at issue, which replaces the author’s express and prior consent with tacit consent or a presumption of consent, deprives the author of an essential element of his intellectual property rights."

It follows that, by depriving authors of their ability to authorise the making of acts of reproduction/communication to the public, French legislature might have gone against what is allowed under EU law.

In addition - further to the CJEU decision in Luksan [here; what was at stake here was an Austrian law that - in contrast with EU law - failed to recognise film directors as first copyright owners] - it is arguable that by vesting ab initio collecting societies with the rights to exploit copyright works France might have deprived authors of their fundamental right to (intellectual) property, as expressly protected instead under Article 17(2) of the Charter of Fundamental Rights of the European Union.

2) A re-design of liability rules?

The second question also relates to the compatibility with existing CJEU jurisprudence. 

Even if the French law requires the making of both an act of reproduction and and an act of communication to the public to fall within its scope of application, it appears to assume that an automated image referencing service:
  • is primarily responsible for the making of acts of reproduction and communication to the public; and
  • in any case, is not eligible for the safe harbour protection in the Ecommerce Directive.
Under the existing EU framework, it may be questionable whether such approach is correct. 

With particular regard to the notion of communication to the public, while it has taken the CJEU several judgments to try and make sense of this notion, as of today it is unclear whether an online referencing service can be considered as making acts of communication to the public itself. 

In the recent GS Media decision [discussed herehereherehere], the CJEU confirmed that if one construes communication as merely requiring the making available of a work, ie without the need for any actual transmission, then what needs to be considered is "the indispensable role played by the user and the deliberate nature of its intervention. The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the ... work" [para 35]

One could wonder whether in the case of an online referencing service, it is this or rather the creators of the websites indexed  (or, in any case, third parties) that play such indispensable role to give access to protected works [as noted here, a similar approach seems to have been (correctly?) taken also by the EU Commission in its recently proposed directive on copyright in the Digital Single Market in relation to the so called 'value gap'].

Another model notification
under Directive 2015/1535
As I noted here, in light of certain decisions of the CJEU and national courts alike, it may be argued that – in the case of a copyright work made available through the service of a passive online intermediary – the latter would not commit an act of (unauthorised) communication to the public (potentially giving rise to primary liability for copyright infringement), because the role that is ‘indispensable’ in the whole process is the one of the third-party/uploader, rather than that of the intermediary. 

3) Why French Government did not notify the EU Commission?

Finally, Directive 2015/1535 requires Member States to notify the EU Commission of any draft technical regulation targeting information society services. The reason, as explained at Recital 4 of the directive, is that "[b]arriers to trade resulting from technical regulations relating to products may be allowed only where they are necessary in order to meet essential requirements and have an objective in the public interest of which they constitute the main guarantee."

By looking at the relevant Commission's database, it seems that this has not happened for Loi No 2016-925 at the draft stage. The only notification I have been able to find relates to the draft decree implementing Articles L-136.3 and L 136.4 IPC.

What could the implications of this missed notification be? 

The answer might be 'inapplicability' of relevant provisions. The CJEU clarified that this would be the effect of the failure by a Member State to notify draft technical regulations before they are adopted in its 1996 decision in CIA Security, and confirmed this in its 2000 Unilever judgment.

Something along these lines has been also suggested in relation to the German and Spanish initiatives on so called 'ancillary copyright' for press publishers [see B Vesterdorf (2015), ‘The effect of failure to notify the Spanish and German ancillary copyright laws’ 37(5) EIPR 263]

Ultimately, the right of appointed collecting societies to license the reproduction and making available of images via automated image referencing services could be unenforceable. So automated image referencing services might not have to secure a licence after all.

In conclusion ...

... It seems that the path to royalties is paved with a number of potential obstacles. As anticipated by Spitz in his blog post, it is indeed likely that "[t]here will be long discussions and probably lawsuits before some royalties result from these new provisions."

But what do readers think?

[This post was originally published on The IPKat on 23 October 2016]

Sunday, 16 October 2016

Rome Court of First Instance rules that copyright exceptions for news reporting and criticism/review do not apply to entertainment TV programmes

Is the practice of publishing extracts of entertainment 
TV programmes risky?
In Italy, yes
(in the picture, an example from UK's Daily Mail)
Do the Italian copyright exceptions for news reporting and criticism/review [respectively, Articles 65 and 70 of the Italian Copyright Act] apply to the reproduction and making available on a newspaper's website of extracts of TV programmes having the character of pure entertainment [eg Big Brother]?

As reported by very interesting online resource Marchi & Brevetti, according the Tribunale di Roma (Rome Court of First Instance) the answer is ... NO.

In a decision adopted on 13 July 2016 but only published on 5 October 2016 (18413/2016), the Rome court ruled partly in favour of RTI - Reti Televisive Italiane (owned by broadcasting company Mediaset). It did so in the context of proceedings that RTI had brought against Gruppo Editoriale L'Espresso over the unauthorised reproduction and making available on the website of Italian newspaper La Repubblica of extracts of a number of entertainment TV programmes to which it owns the copyright. 

The Rome Court ruled that Gruppo Editoriale L'Espresso had both infringed the claimant's copyright and committed acts of unfair competition, but rejected the claim that it had also infringed RTI's trade marks. All in all, the Court ordered the defendant to remove all relevant videos and refrain from the future upload of any further videos in which copyright is owned by RTI. The Court also ordered the defendant to pay damages for EUR 250k.

Here's what the Court said in relation to copyright infringement.

The EU framework

Following a series of preliminary remarks regarding RTI's ownership of rights, the Rome court held that the defendant would not be eligible for the safe harbour protection for hosting providers within Article 16 of D.Lgs. 70/2003 [by which Italy implemented the ECommerce Directive into its own legal system], as well as Article 17 therein [prohibition of an obligation to monitor]. The reason is that the defendant "selects and directly manages the contents it uploads onto its platform".

The Rome court then turned to the consideration of whether the exceptions for news reporting and criticism/review would apply to the activities of the defendant. 

By referring to the decision of the Court of Justice of the European Union (CJEU) in Infopaq, the Rome court noted how the exceptions in Articles 65 and 70 of the Italian Copyright Act have an exceptional and special character compared to the principle according to which the author has the exclusive right to exploit economically his/her work. As such, these provisions must be only applied in the cases expressly provided for by the law and as long as they are justified to protect interests that are recognised by the Italian constitution and have an equal - if not superior - rank to copyright protection.

News reporting?
Unless you're interviewing Merpel
with her breaking news stories,
it's difficult to invoke successfully
This said, the Court also recalled that in ACI Adam the CJEU suggested that copyright exceptions must be applied by courts in compliance with the three-step test in Article 5(5) of the InfoSoc Directive [on this point, ie who the addressees of the three-step test in this piece of EU legislation, see here]

Following this overview of relevant CJEU decisions, the Rome court considered the wording of Articles 65 and 70 of the Italian Copyright Act.

News reporting

In relation to Article 65, the court noted how the first paragraph in this provision limits the application of the exception to the reproduction and making available of "news articles having an economic, political or religious character". 

According to the Rome court, Article 65 would be therefore inapplicable [here the reasoning is a bit hard to follow: it is not entirely clear why the court referred to the first paragraph of Article 65, since what was reproduced on La Repubblica was not articles, but rather TV programmes].

Turning to the second paragraph in Article 65 ["The reproduction and communication to the public of protected works or materials used in the context of current events is allowed for the sake of news reporting and within the boundaries of what is needed to inform, as long as the source, including the name of the author, is indicated, unless this proves impossible"], the Court also concluded for its inapplicability, considering that the relevant TV programmes remained available for a long time after their first making available through RTI's TV channels.


Turning to the exception for criticism/review, the Court also concluded that this would not be applicable because of the commercial character of Gruppo Editoriale L'Espresso's use of RTI's programmes. The Court noted how the defendant had made EUR 17k from the sale of advertising space linked to videos reproducing relevant extract of RTI's programmes.

According to the Court there would be no direct link between the unauthorised use of RTI's videos and the journalistic activity of the defendant. This, in fact, in order to make its own product more appealing from a commercial standpoint, provides readers with a service that goes beyond mere information. The very circumstance according to which RTI's videos are physically located within an autonomous section of La Repubblica's website confirm - according to the judge - that this is a service that is distinct from the information activity carried out by La Repubblica. 

But is the publication
of these extracts bad for rightholders?
Some considerations

The decision is interesting for a number of reasons.

First, and to say the least, with this decision the Rome Court has confirmed once again to be particularly sensitive to copyright protection claims [see hereherehere for previous instances]

Secondly, turning to more substantial considerations, at least in the interpretation provided by the Rome Court, the scope of Italian exceptions for news reporting and criticism/review appears fairly narrow. 

A related question is whether Gruppo Editoriale L'Espresso could have relied on different exceptions, eg quotation. Also here, the answer appears to be in the negative. As previously reported by this blog in relation to the copyright position of GIFs, in fact, Article 70(1-bis) of the Italian Copyright Act allows online free publication of low resolution or degraded images and musical works, for educational or scientific uses and only where such use is for non-commercial reasons. 

Thirdly, while it is true that there is CJEU jurisprudence [note, however, not always consistently] supporting the view that copyright exceptions and limitations should be interpreted strictly and applied in compliance with the three-step test, more recently a line of CJEU cases has also been questioning the compatibility with EU law of the addition - by national legislatures - of extra requirements and conditions for national exceptions, when such requirements and conditions have no correspondence in the wording of relevant exeptions in Article 5 of the InfoSoc Directive. The question that arises is therefore whether the extra requirements provided for in Article 65 and 70 of the Italian Copyright Law - that go beyond the wording of Article 5 of the InfoSoc Directive - are (still) compatible with EU law.

Fourthly, if the one of the Rome Court is the correct approach to the interpretation of Articles 65 and 70, then other newspaper websites should quickly change their policy on publishing extracts of TV programmes. A quick search shows in fact that - not just La Repubblica - but many other newspapers' websites are very keen on publishing extracts of entertainment TV programmes ... An example is Corriere della Sera'obsession with the (entertaining) moods of Italian X Factor's judge Manuel Agnelli: see hereherehere.

Finally, a practical question: is the publication of these extracts really detrimental to rightholders? Or does it rather serve to make a TV programme known to a broader audience and - as result - a potentially higher number of viewers? 

If I take my case, the answer seems to be that publication of short extracts by third parties might not be all bad. Quite the contrary, actually. 

Being based in the UK, I am prevented from watching Sky Italia (despite subscribing to it). Without Corriere della Sera's extracts I would have not been able to know anything about Manuel Agnelli's X Factor adventure. Thanks to Corriere, not only do I know something about it, but I am also keen to watch X Factor as soon as I set foot in my beloved home country again.

[Originally published on The IPKat on 16 October 2016]