Monday, 27 July 2020

The AG Opinion in YouTube/Cyando: a regressive interpretation of the right of communication to the public

AG Saugmandsgaard Øe
A few days ago, The IPKat reported on Advocate General (AG) Saugmandsgaard Øe’s Opinion in YouTube and C-683/18 Cyando. When the Court of Justice of the European Union (CJEU) issues its judgment, it will have the opportunity to determine:
Joined Cases C-682/18 
  • Whether user-uploaded content (UUC) platforms like YouTube and Uploaded (the latter is a cyberlocker) do perform acts of communication to the public under Article 3(1) of the InfoSoc Directive [according to the AG, in principle, they do not];
  • Whether the hosting safe harbour in Article 14 of the E-commerce Directive is in principle available to these platforms [according to the AG, it is];
  • How to interpret Article 14(1)(a) of the E-commerce Directive and Article 8(3) of the InfoSoc Directive.
Possibly (though no questions have been expressly referred on this point), the CJEU will also consider a central aspect of the AG Opinion, that is the relationship between Article 17 of the DSM Directive (not applicable to the facts at hand) and the pre-2019 acquis. According to the AG, Article 17 has introduced into EU law a new liability regime for what the DSM Directive calls ‘online content sharing service providers’, which is not merely a clarification of the pre-existing law as, instead, suggested by recital 64 in the preamble therein.

In light of the foregoing, it is apparent that the resulting CJEU judgment in YouTube/Cyando has the potential to be key to different areas of copyright law and, more generally, the online intermediary regime (currently also under discussion on a policy level, in the context of the forthcoming EU Digital Services Act).

Having read (and digested) the 256-paragraph AG Opinion (if you print it, it’s a mere 62 pages), one also realizes that it would be quite challenging to summarize it in a single blog post. That is why the Court’s press release is so great.

This said, in this blog post I will share my initial thoughts regarding the AG’s construction of the right of communication to the public under Article 3(1) of the InfoSoc Directive.

The starting points

The Opinion appears premised upon two key considerations.

The first is that the present referrals are relevant to users and the expression of their creativity online (see [42]-[43] and also, later on, [241] in respect of Article 13 of the EU Charter). Whilst it is true that both matter in the context of the online construction of copyright’s exclusive rights and online platforms’ responsibilities and liabilities, neither appears key to the background national proceedings. In fact, in both YouTube and Cyando what had been uploaded on the relevant platforms were unmodified full-length versions of, respectively, music tracks from an album and recordings of concerts produced by Mr Peterson and books published by Elsevier.

The second is the refusal, by the AG, to acknowledge that - as matter of fact – the CJEU has absorbed the (formally unharmonized) secondary liability regime into the (harmonized) primary liability regime for copyright infringement (see how he titles Section 2 of his Opinion ...). To this end, as it will be also discussed below, the AG characterizes the earlier CJEU rulings in GS MediaFilmspeler, and Ziggo as a sui generis group of decisions without broader applicability beyond particularly egregious scenarios. 

In addition, like the AG had done in his Opinion in Constantin Film [here and here], the Opinion expressly rejects what it calls a ‘dynamic’ interpretation of the law (in respect of intermediaries’ stay down obligations: see [194]).

Let’s now move on to the core of the AG’s construction of liability under Article 3(1) of the InfoSoc Directive. 

The AG’s view of the right of communication to the public

During last week’s Joint IPKat/BLACA Live Webinar, I called the Opinion ‘regressive’ in this respect. I also stated that I would use ‘regressive’ in a neutral fashion: what I mean by this adjective is that the AG Opinion appears to hold a critical view of how the CJEU has progressively construed the right of communication to the public over the past several years (the AG seems to think that things began going wrong as early as SGAE in 2006, that is the first CJEU decision in the right of communication to the public …) and invites the CJEU to take a step back and (re-)consider what it has ‘done’ all this time.

In this respect, the Opinion echoes – though it does not expressly refers to it – the Opinion of AG Wathelet in GS Media [here], in which he warned the CJEU that the approach taken in Svensson with regard to linking to protected content was – put it bluntly – all wrong.

This said, the following appear to be the key points in relation to which the Opinion can be considered ‘regressive’ from the perspective of Article 3(1) of the InfoSoc Directive.

Transmission v accessibility

First, the AG does not seem to be a huge fan of the ‘accessibility’ approach in the construction of the notion of ‘act of communication’, at least if accessibility is considered in unqualified terms. 

At various points in the Opinion (notably [56] and [97]), he suggests that a communication to the public “corresponds to the transmission of a work”. If a work is simply made available, then – to be an ‘act of communication’ – something more is required: the access in questions must make it “possible for that work to be transmitted, at the request of a member of the public.”

Sui generis decisions

Secondly, as mentioned above, the Opinion considers GS MediaFilmspeler, and Ziggo as belonging to a sui generis group of decisions. The presumption of knowledge established in GS Media would not even have applicability beyond the particular case of linking to unlicensed content (see [113]).

Indispensable/essential intervention

Thirdly, the question of whether the user plays an indispensable/essential role should not be intended as akin to whether the user facilitates access to protected content. Rather, the question of indispensability should be who plays the “more fundamental” role: see [73]. 

In the case of a UUC platform, the user-uploader would play a role that is more fundamental (since they make the content available in the first place) than that of the platform.

Mere provision of facilities

Fourthly (and in turn), the AG adopts a rather generous reading of recital 27 of the InfoSoc Directive and the notion of “mere provision of facilities”. 

In his view, the mere provision of facilities would not mean mere provisions of mere facilities (at [82]). The fact that a platform has some or a significant degree of sophistication (as it is for instance the case of YouTube) should not mean that the platform is not a mere facility.

Watching Grey's Anatomy 
of studying (on a lawful copy of)
Gray's Anatomy
Primary v secondary liability 

Fifthly (also this follows from point 3 above), the AG rejects the idea that secondary liability has now been absorbed within the harmonized primary liability regime. 

To this, one may point out to what AG Szpunar wrote in the very opening of his Opinion in Ziggo [at [3]; Katpost here], an approach which the CJEU subsequently endorsed:
The European Commission, whose opinion appears to me to be shared by the United Kingdom of Great Britain and Northern Ireland, contends that liability for sites of this type is a matter of copyright application, which can be resolved not at the level of EU law but under the domestic legal systems of the Member States. Such an approach would, however, mean that liability, and ultimately the scope of the copyright holders’ rights, would depend on the very divergent solutions adopted under the different national legal systems. That would undermine the objective of EU legislation in the relatively abundant field of copyright, which is precisely to harmonise the scope of the rights enjoyed by authors and other rightholders within the single market. That is why the answer to the problems raised in the present case must, in my view, be sought rather in EU law. (emphasis added)
Article 17 of the DSM Directive

Sixthly, as mentioned, the liability regime in Article 17 of the DSM Directive would be a novel regime, which does not have retroactive application. 

In this regard, it is also worth noting that, unlike both Article 17 (which excludes the availability of hosting safe harbour in relation to situation covered by that provision) and what the referring court appears to think by looking at how the referred questions have been phrased, the AG considers that the hosting safe harbour is available irrespective of the type of liability at hand.

All in all

In conclusion, when it comes to UUC platforms, the AG considers that liability for unauthorized acts of communication to the public would subsist in two situations: when the platform is a piracy-focused one (so that decisions like Ziggo would apply) or when the platform presents the content as its own. Let’s now see whether the CJEU agrees.

The full recording of the Joint IPKat/BLACA Live Webinar is available here.

[Originally published on The IPKat on 27 July 2020]

Sunday, 12 July 2020

CJEU follows AG and rules that notion of 'address' does not extend to email and IP addresses and telephone numbers

The IPKat has an email address, 
but not a postal one
(Image by Riana Harvey)
Does the notion of ‘address’ only refer to one’s own postal address or does it also encompass one’s own email and IP address, as well as telephone number?

This, in a nutshell, is the question which the Court of Justice of the European Union (CJEU) had been required to answer in Constantin Film v YouTube, C-264/19.

The referral, which Germany’s Federal Court of Justice had made, focused on the interpretation of Article 8(2)(a) of the Enforcement Directive, a piece of EU legislation adopted in 2004.

The background national proceedings had originated from the refusal, by YouTube and its parent company Google, to provide film producer Constantin Film with the email and IP addresses, as well as telephone numbers, of YouTube users who had uploaded on that platform unlawful copies of its films Parker and Scary Movie 5.

A few months ago - as The IPKat reported - Advocate General (AG) Saugmandsgaard Øe advised the CJEU to rule that the notion of ‘address’ is limited to one’s own postal address, but that individual Member States could go beyond the Enforcement Directive (this is only aimed at providing a minimum harmonization between Member States’ law) and provide for more extensive obligations on infringers or other subjects, including online intermediaries and platforms.

Earlier this week, the CJEU issued its ruling, substantially agreeing with AG Saugmandsgaard Øe.

Let’s see more in detail how the Court reasoned.

The notion of 'address'

First, the Court reiterated the AG’s point regarding the lack of reference, in Article 8(2)(a), to the law of individual Member States. Thus means that the concept of ‘address’ in that provision is an autonomous concept of EU, which must be given an independent and uniform interpretation throughout the EU.

Secondly, also like the AG, the CJEU indicated the need to interpret the notion of ‘address’ “in accordance with its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part and, where appropriate, its origins” [para 29]

From this it would follow - as also the AG opined and as seemingly supported by both the travaux to the Enforcement Directive and the context in which the term is used - that the notion of ‘address’ in everyday language would be limited to one’s own postal address, that is “the place of a given person’s permanent address or habitual residence” [para 30]

This conclusion would be also consistent with the purpose of Article 8 and the overall objective of the Enforcement Directive. Whilst it is true that, by adopting this piece of legislation, the EU legislature sought “to apply and implement the fundamental right to an effective remedy guaranteed in Article 47 of the Charter of Fundamental Rights, and thereby to ensure the effective exercise of the fundamental right to property, which includes the intellectual property right protected in Article 17(2) of the Charter” [para 35], the harmonization of enforcement measures pursued therein is limited to narrowly defined information in Article 8(2).

In all this, the directive seeks to establish a ‘far balance’ between IP protection on the one hand, and the interests and fundamental rights of users and the public interest on the other hand. In the specific case of Article 8, the fair balance is between copyright protection and the right to protection of personal data, which is safeguarded under Article 8 of the Charter.

Training for some robust enforcement initiatives

As mentioned, the CJEU decision is in line with the Opinion of AG Saugmandsgaard Øe, yet manages to go beyond it. 

Not only does the judgment refuse to include email and IP addresses, as well as telephone numbers, in the notion of ‘address’, but also adopts a rather narrow definition of address. 

An ‘address’ is in fact only "the place of a given person’s permanent address or habitual residence".

However, as discussed in The IPKat's earlier post on the AG Opinion, the one provided by the AG and the Court is not really what the everyday language understanding of ‘address’ appears to entail.

If we look at the definition provided by the Cambridge Dictionary, the notion of address is not limited to one's own:
  • physical address, as the notion may also refer to “a series of letters and symbols that tell you where to find something on the internet or show where an email is sent to” or “the place where a piece of information is stored in a computer's memory”;
  • place of permanent address or habitual residence, but does rather encompass "the number of the house, name of the road, and name of the town where a person lives or works, and where letters can be sent".
With regard to the notion of address as a physical place, the definition found on the Oxford Learners’ Dictionaries is that of “details of where somebody lives or works and where letters, etc. can be sent”. The same source also confirms that an address may be “a series of words and symbols that tells you where you can find something using a computer or phone, for example on the internet”.

In sum, the considerations undertaken by the AG and the Court are not convincing this time.

It is true that individual Member States can provide greater protection to rightholders if so they want. However, how’s that of any consolation when, as the Court writes, what EU law mandates – besides the infringer’s name – is the disclosure of details, which are of no real use to rightholders when enforcing their rights, because uploaders-infringers do not need to provide them to platforms in the first place?
The referring court notes, in that regard, that, in order to upload videos onto the YouTube platform, users must first of all register with Google by means of a user account, the opening of that account requiring only that those users provide a name, email address and date of birth. Those data are not usually verified and the user’s postal address is not requested. However, in order to be able to post onto the YouTube platform videos lasting more than 15 minutes, the user must provide a mobile telephone number to enable him or her to receive an activation code, which is necessary in order to post. Furthermore, according to YouTube and Google’s joint terms of service and privacy policies, users of the YouTube platform consent to server logs, including the IP address, date and time of use as well as individual requests, being stored and to those data being used by participating undertakings.” [at [16]; emphasis added]
There is no need to embark on a ‘dynamic’ interpretation of the law (as the AG pointed out at [45] of his Opinion) to reach the simple conclusion that the everyday language meaning of ‘address’ is not the one eventually adopted. Nor is the definition adopted by the Court one that allows to conclude that the 'fair balance' objective of Article 8 of the Enforcement Directive has been also fulfilled.

[Originally published on The IPKat on 12 July 2020]

Monday, 6 July 2020

When does a communication to the public under EU copyright law need to be to a ‘new public’? A new research article

A public?
Over the past several years, the right of communication to the public in art. 3(1) of the InfoSoc Directive has progressively and consistently taken centre stage in the EU copyright system. This has been so also given the great number of referrals (over twenty since the 2006 decision in SGAE) to the Court of Justice of the European Union (CJEU).

EU law does not define the concept of ‘communication to the public’. Lacking a definition, the CJEU has sought to determine the meaning and scope thereof in light of the objectives pursued by the InfoSoc Directive, notably that of ensuring a high level of protection of intellectual property (recital 24). Like the other economic rights harmonised in the InfoSoc Directive, the right of communication to the public “should be understood in a broad sense” (recital 23).

The two key requirements of art. 3(1) of the InfoSoc Directive are a ‘communication’ directed at a ‘public’. A simple example might be a free-to-air broadcast: the broadcast is an act of communication and it is to the public, because any member of the public with a suitable device can receive the signal and watch/listen to the broadcast. But what if the broadcaster operated online and made available works previously communicated online by the relevant rightholder? Would that activity require a licence? 

The CJEU has indicated that, when the communication at issue concerns the same works as those covered by the initial communication and is made by using the same technical means (as is the case in the example, since both acts are performed on the internet), it is necessary to determine – not whether the communication at issue qualifies as a communication to the public – but rather whether such communication is to a ‘new public’.

By ‘new public’, the Court intends a public not taken into account by the relevant rightholder when they authorised the initial communication. Although the ‘new public’ has been part of CJEU jurisprudence since 2006, it is a concept that has no statutory basis – whether in international or EU law. As a requirement employed by the CJEU in its case law, the ‘new public’ has been widely criticised, especially in the aftermath of the 2014 decision in Svensson.

In a research article which will be published by European Law Review later this year, I investigate the origin of the notion of ‘new public’, its use and development in the case law of the Court, as well as the justifications given for its use. 

The article identifies four distinct groups or phases of decisions in which the concept of ‘new public’ has been employed in different ways. The analysis details the evolution occurred within CJEU case law and shows how the role of the ‘new public’ has changed over time. 

In light of this history, the article agrees with existing scholarship that suggests that the ‘new public’ creates undue complexity in the reasoning of the CJEU in most instances, with only a limited number of cases, that is (some of) those concerning linking to protected content, in which the notion performs a substantial – yet confusing and overall unhelpful – role. However, it does not consider it absolutely necessary for the CJEU to expunge the concept of ‘new public’ from its analysis altogether, also because in most cases the role of the ‘new public’ has not been key. 

What public did they have in mind?
Whilst the abandonment of the ‘new public’ might be desirable in principle, it appears difficult to simply eject it from the analysis of the right of communication to the public lacking a proper re-calibration of the role of other components. In addition, it may be unrealistic as an expectation, also considering that the notion of ‘new public’ has been part of CJEU case law since the very first communication to the public case (SGAE).

The analysis undertaken in this article leads to the overall conclusion that the CJEU should at least cease considering the ‘new public’ as a requirement in instances in which the defendant’s act of communication to the public is in fact a new act communication to the public. If that is the case, art. 3(1) of the InfoSoc Directive applies and it is irrelevant whether the technical means is the same or different and whether the public targeted by said act is also new.

The one suggested is a solution that is readily implementable without the need to ‘depart’ from earlier case law. It also allows a more streamlined reasoning on the side of the CJEU, which is respectful of the language, content, and aims of both international and EU law provisions. Although the analysis mostly focuses on the case law issued in respect of art. 3(1) of the InfoSoc Directive, the findings are generally applicable to the various rights of communication/making available to the public and public performance under EU and national law, including inter alia the Rental and Lending Rights Directive and the recently adopted DSM Directive.

In sum, the elusive ‘new public’ concept that has dominated CJEU case law on communication to the public since 2006 may not be as key as the Court has instead considered and conveyed it to be.

The full text of the article is available here. Feedback and comments always welcome!

[Originally published on The IPKat on 2 July 2020]