The fragmented approach of the EU Copyright law harmonisation leaves room for interpretation by the Court of Justice of the European Union (CJEU) to guide national courts.
The best example illustrating how the definition and the scope of a legal concept can evolve significantly over the years, is the concept of communication to the public.
The key article concerning communication to the public is Article 3 of the InfoSoc Directive:
‘Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’
Communication to the public can take place by wire or through wireless means, including also on-demand services.
Two cumulative elements are required: an act of communication and a communication to a public.
The CJEU reflected on the transmission of radio and television programs in café-restaurants (SPA), in dentist waiting rooms (Del Corso), in rehabilitation centres (Reha Training), in hotel rooms (SGAE, OSDD and PPL) and in spa treatment bedrooms (OSA).
Also the form of exploitation was studied in the discussion, going from the retransmission of television broadcasts over the internet (ITV) to the re-use of works initially transmitted online (Svensson, BestWater, C More Entertainment and GS Media).
With the Digital Single Market Directive in mind, it seems appropriate to overview the relevant case law issued by the CJEU with a special focus on linking.
In Svensson, the CJEU observed that making available copyright protected press articles by means of a clickable link redirecting the user to those protected works freely available on another website, does not lead to an act of communication to a new public. The public targeted by the initial communication consisted of all potential visitors to the site concerned. Linking to works freely accessible (without any restrictive measures) on another website with the consent of the right holder does not require the authorization of the copyright holder. On the other hand, if the clickable link circumvents access control measures and opens to content restricted to subscribers only, this constitutes an unauthorized communication to a new public. Linking to a work no longer available on the internet also constitutes a communication to a public.
The BestWater case raised the question whether embedding copyright protected promotional videos in a website by framing technology (also known as ‘transclusion’) constitutes infringement on the basis of communication to the public. The Court stated that framing should not be considered as an act of communication to the public as long as there is no new public and the technical means used for the communication do not differ from the technical means of the initial communication.
In C More Entertainment, C More’s paywall was circumvented by the creation of links enabling users to watch live broadcasting of ice hockey matches without paying for C More’s services. The CJEU first noted that ‘making available to the public’ is intended to refer to interactive on-demand transmissions characterized by the fact that members of the public may access them from a place and at a time individually chosen by them. For live broadcasts, the public does not have the possibility to choose when to watch the sporting event. The second cumulative condition of Article 3 of the InfoSoc Directive not being met, the CJEU ruled that a hyperlink providing access to live broadcasts does not constitute an act of making available.
GS Media sparked the highly relevant question whether posting on a website a hyperlink to copyright protected works, freely available on another website without the consent of the copyright holder, constitutes a communication to the public?
The Court reflected on the intervention of the linker in full knowledge: the person making the link, knowing that the hyperlink provides access to a work illegally placed on the internet, makes a communication to the public. The linking was found to be a deliberate intervention circumventing the restrictions limiting the public’s access to the initial site’s subscribers. The CJEU also assessed the profit-making nature of the hyperlinks as an aggravating factor for the knowledge of the linker: knowledge of the for-profit linker is presumed, however that presumption can be rebutted by showing that ‘necessary checks’ have been made.
The most recent case on communication to the public was already discussed in my previous blog post. In the Cordoba (Renckhoff) case, the CJEU ruled that the posting on a website of a photograph, freely accessible on another website with the consent of the author, requires a new authorization by that author. Re-posting constitutes a new act of communication to the public.
Case law cited in this article by order of appearance:
- SPA (Sociedade Portuguesa de Autores): C-151/15: Darts reference: C-151_15_20150714
- SCF v. Marco Del Corso: C-135/10: Darts reference: C-135_10_20120315
- SGAE v. Rafael Hoteles: C-306/05: Darts reference: C-306_05_20061207
- OSDD v. Divani Akropolis: C-136/09: Darts reference: C-136_09_20100318
- PPL (Phonographic Performance Ireland Limited v. Ireland): C-162/10: Darts reference: C-162_10_20120315
- OSA: C-351/12: Darts reference: C-351_12_20140227
- ITV Broadcasting e.a. v. TVCatchup: C-607/11: Darts reference: C-607_11_20130307
- Svensson: C-466/12: Darts reference: C-466_12_20140213
- BestWater: C-348/13: Darts reference: C-348_13_20141021
- C More Entertainment: C-279/13: Darts reference: C-279_13_20150326
- GS Media: C-160/15: Darts reference: C-160_15_20160908
- SBS Belgium: C-325/14: Darts reference: C-325_14_20151119
- Renckhoff: C-161/17: Darts reference: C-161_17_20180807
To find a complete coverage of CJEU case law on this topic in the Darts-ip database: combine your search by selecting the CJEU as court plus point of law: Communication to the public: # 38 cases.
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