Tuesday, 18 February 2014

Svensson - free to link or link at your risk?

Last week's CJEU Svensson v Retriever decision has established some important points about the legality of linking under EU copyright law:
  1. A clickable direct link to a copyright work made freely available on the internet with the authority of the copyright holder does not infringe. 
  2. It makes no difference to that if a user clicking on the link is given the impression that the work is on the linking site.
  3. However, it seems that a clickable link will (unless saved by any applicable copyright exceptions) infringe if the copyright holder has not itself authorised the work to be made freely available on the internet (but see further discussion below).
  4. If the work is initially made available on the internet with restrictions so that only the site’s subscribers can access it, then a link that circumvents those restrictions will infringe (again subject to any applicable exceptions and further discussion below).
  5. The same is true where the work is no longer available on the site on which it was initially communicated, or where it was initially freely available and subsequently restricted, while being accessible on another site without the copyright holder’s authorisation.
It seems to follow, although this is not very clear in the judgment, that a link to an infringing copy does not infringe if, and for so long as, a copy of the same work is freely available somewhere on the internet with the authority of the copyright holder. (“How could I possibly know that?” you ask.  More on that theme below.)  But this would not exempt links to infringing copies of works that are not legitimately available on the internet at all, or which have only been legitimately made available on the internet under restrictions.

In practical terms the Court has made a valiant attempt to balance the competing considerations of protecting rightsholders’ content without restricting reasonable user behaviour.  However among the commentators (see hereherehere and here - hat tip to these for some of the questions raised below) some are already suggesting that the CJEU’s reasoning – giving a very wide meaning to an act of communication, then reining back the scope according to whether the link makes the work available to a ‘new public’ compared with that contemplated by the copyright holder – may store up trouble for the future.

Open questions

Before delving into that, let’s mention some areas that Svensson may have left open for future decisions (such as, possibly, the pending references in C More Entertainment and Bestwater).

  1.  The Court draws a distinction between freely available content and, on the other hand, restricted content where a link circumvents the restrictions. Are those intended to be the only two possible categories, so that if a copyright work is not ‘restricted’ it is necessarily ‘freely available’? Or are they two ends of a spectrum, the middle of which has yet to be explored? What, for instance, would be the position if the copyright holder has authorised a licensee to make the content freely available on the internet, but the licensee makes it available only on a restricted basis?
  2. Does ‘restricted’ refer only to technical restrictions (and how sophisticated?), or does it also encompass licence or contractual restrictions?
  3. The judgment refers only to clickable links.  What about other varieties of link, or analogous technologies? The logic of the judgment would seem to apply to inline links where, rather than awaiting the user’s click, the linked-to content is served up automatically to the user when the web page is requested.
  4. The judgment refers to links ‘to’ copyright works, affording ‘direct’ access to those works. Does the link have to be to the actual work itself in order to make it available, or does a link to a page containing the work suffice? So applying the Svensson reasoning a clickable link to the URL of a news page makes available the HTML text of that page. Does it also make available a photograph which loads automatically as part of the news page, but which is nevertheless a separate copyright work with its own URL capable of being separately linked to? What about a playable video within the page, or a PDF downloadable from that page? Each of those is a separate copyright work requiring a further click by the user to access it.  Might they be regarded as indirectly, rather than directly, accessible from a link to the news page containing them?
  5. Does the reservation for subsequently removed or restricted works apply only to new links created after the initially freely available work was withdrawn or restricted, or do existing links to unauthorised copies automatically become infringing?
  6.  What is the position where initially the work was lawfully made freely available on the internet under an exception to copyright, such as fair dealing? Is that different from when it was done with the authorisation of the copyright holder?  On the face of it the Svensson version of the 'new public' test would not of itself legitimise linking in the former situation.
It is also important to understand that the Court's decision only concerns whether a link can amount to 'communication to the public' for the purposes of harmonised EU copyright law. It does not deal with other ways in which linking might infringe, for instance by authorising infringement or joint liability for someone else's infringement.  Nor does it say anything about non-copyright issues such as passing off or unfair competition.

Authorising the initial internet communication

The most significant aspect of the Svensson judgment is, oddly, not mentioned in the operative part of the decision (in which the Court provides its definitive answer to the question posed by the referring national court). The operative part says:

“…the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public' … .”

Taken at its face, that could suggest that a link to any freely available work does not infringe, regardless of whether the copyright holder initially authorised the work to be made freely available on the internet. That would broadly legitimise most links. But if that is right it is difficult to understand the numerous references in the judgment to whether the copyright holders authorised the initial communication to the public on the internet, and the potential audience contemplated when they did so.  It seems likely that the operative part should instead be understood to mean:

“…the provision on a website of clickable links to works freely available on another website, in circumstances where the copyright holder has authorised such works to be made freely available at [that]/ [an] internet location, does not constitute an ‘act of communication to the public' … .”

The alternatives ‘that’/‘an’ reflect the possible uncertainty about the effect of the judgment on links to unauthorised copies where the copyright holder has authorised the work to be freely available at some other location on the internet. 

The curious case of the freelance journalist

The significance of the copyright holder’s authorisation of the initial internet communication is well illustrated by the facts of Svensson itself. According to the CJEU judgment the Swedish proceedings were between four journalists, Mr Svensson, Mr Sjögren, Ms Sahlman and Ms Gadd, who sued Retriever Sverige AB for compensation resulting from Retriever’s inclusion on its website of clickable links to press articles in which the journalists held the copyright.

The Court said:
[The journalists] wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. Retriever Sverige operates a website that provides its clients, according to their needs, with lists of clickable Internet links to articles published by other websites. It is common ground between the parties that those articles were freely accessible on the Göteborgs-Posten newspaper site. …”
The journalists claimed that by linking to the articles on the newspaper website Retriever was making their articles available to its clients without their consent. When the CJEU discussed ‘new public’ it said:

“a communication, such as that at issue in the [Swedish] proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public ….
… it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.
Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.” (emphasis added)
The assumption of the Court in coming to this conclusion on the facts appears to be that the four copyright holder journalists all authorised the newspaper to make the articles freely available on the newspaper website - the site on which the initial communication on the internet was made and to which Retriever linked.  

But what if the journalists had authorised publication only in the print newspaper and not on the newspaper website? It then seems inescapable that since the initial communication on the internet would not have been authorised by the journalists, a public link to the newspaper website article would be caught, even though the article was freely available on the newspaper website and not subject to any restriction.

Curiously, that scenario may have some relevance to the Svensson case itself. In his judgment in Paramount Home Entertainment v BSkyB, Mr Justice Arnold summarised the facts of Svensson based on English translations of the Swedish judgments provided by Paramount. He said this:

“14.The claimants were four journalists who between them had written 13 articles published by the Göteborgs-Posten newspaper. Three of the journalists were employed by the newspaper, while one was freelance. All of the articles had all been published not only in print, but also online on the newspaper's website. In the case of one of the articles, which was written by the freelance author, the online publication by the newspaper was not licensed by the author.” (emphasis added)

If that is right, then for one of the 13 articles the copyright holding journalist who wrote it did not authorise initial communication to the public on the internet. For that article (assuming that the journalist had not authorised freely available publication elsewhere on the internet) the CJEU’s conclusion that the link did not amount to a communication to a new public would be thrown into doubt (unless it is wrong to read the 'authorisation of initial communication' qualification into the operative part, as discussed above).

Does Svensson pass the 'reasonable internet user' test?

Whatever the precise facts of Svensson may be, this example illustrates a fundamental difficulty with the CJEU's judgment, assuming that the 'authorisation of initial communication' qualification is correct.  Ordinary internet users are put in the position of publicly linking at their risk to any freely available content on the internet, however reputable the site may be, because they cannot be certain and have no practicable way of finding out whether the site owns copyright in its material, or has properly licensed it in, or whether a third party copyright owner has authorised the same material to be made freely available elsewhere on the internet.

A good test when evaluating copyright judgments that directly affect the general public, especially internet users, is this: 
  1. Can I explain to a user with confidence exactly what rules s/he has to follow?
  2. Will a reasonable internet user think those rules are sensible?
  3. In any given situation can the user readily ascertain whether what s/he wants to do will infringe?
Svensson just about passes the first question, probably fails the second and certainly fails the third.

The third point is especially significant since, at least in the UK, civil liability for primary copyright infringement is strict. You can infringe by accident, in situations where you are blameless. It is no excuse that you did everything you could to avoid infringement, or that you had no reason to think you were infringing.

That has always been the case in the UK for primary infringement (reproduction, communication to the public and some other types of restricted act).  It is a hangover from the hard copy days when copyright was almost entirely a commercial matter and hardly impinged on end users. It was reasonable to expect commercial publishers and broadcasters to clear rights first. Even then dealers, such as commercial distributors, were subject only to secondary infringement: they did not infringe copyright unless they had reason to believe they were handling an infringing copy.

Now, thanks to the long reach of digital copyright (which Svensson's interpretation of 'making available' has arguably extended even further) primary copyright infringement impinges directly on end users.

End users are in no position to clear rights before, for instance, posting links to public discussion forums or on social media platforms. We make decisions to send public tweets, including links, in a matter of seconds.  If we are retweeting, we may not even visit the location to which the original tweet links.  If we are expected to embark on some investigation to satisfy ourselves that our link won’t infringe, for instance because someone’s unlicensed copyright might be lurking behind a reputable site – worse still if there is no practicable investigation that we can make - then we have a regime that risks chilling freedom of expression. 

It is no answer to suggest that if the links are harmless no-one will ever complain.  That would repeat the UK format-shifting episode, where the gap between copyright principle and reality has been so great as to bring copyright into disrepute.  Nor is it an answer to say that you don’t have to tweet links.  That is exactly the kind of chilling effect that copyright law should avoid.

Of course copyright law does contain some built-in freedom of expression accommodation.  Many linking tweets may find refuge in, say, the UK fair dealing exceptions for criticism, review and news reporting.  However these contain their own technicalities and limitations. For instance the UK news reporting exception does not apply to photographs. And the exceptions vary from one country to another, even within the EU. That is problematic for a user given the inherently cross-border nature of the internet. Is a tweeter expected to consider which countries her tweet may be thought to be targeting before tweeting a link?

Whatever happened to Article 10?

Again on the point of chilling freedom of expression, the CJEU judgment contains a surprising omission. Notwithstanding that it has adopted an interpretation of ‘making available’ of such breadth that it must engage Article 10 ECHR/Article 11 EU Charter, the Court conducted no proportionality assessment. In fact there is no mention of Article 10/11 at all; this after SABAM v Scarlet and Donald Ashby, in which the CJEU and European Court of Human Rights respectively have held that copyright has to be balanced against other fundamental rights.

What could the CJEU have done differently?

The CJEU could have avoided these problems had it adopted a narrower view of “making available”. It could have restricted it to material intervention in the actual or putative transmission, so that but for the intervention no transmission would take place.  In most previous CJEU communication to the public cases the defendant was an actual or putative transmitter. In Airfield the defendant was not, but supplied encryption keys and decoder cards without which the transmission could not take place. Thus there was a material intervention (in effect a participation) in the transmission. 

In its first communication to the public case, Rafael Hoteles, the CJEU treated the ‘without which’ transmission requirement as forming part of the test for an ‘act of communication to the public’.   In Airfield the ‘without which’ test became mixed up with ‘new public’.  Now, in Svensson, the process is complete. ‘Act of communication’ has been completely decoupled from transmission.  ‘New public’ is everything.  One has to wonder whether this is a wise progression.

[Thanks to @twobirds colleagues for looking over a draft, especially Jerker and Benoit for insightful comments. However they bear no responsibility for this final version.]

[Updated 10.50 am 19 February 2014 to clarify Open Question 6 and cross refer to Open Questions in initial paragraph.] [Further tweaking 12.45pm 20 February 2014.]

Wednesday, 8 January 2014

The CJEU's Innoweb dedicated meta search judgment in 15 tweets

Full CJEU judgment here

And the operative part of the CJEU judgment:

"Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that an operator who makes available on the Internet a dedicated meta search engine such as that at issue in the main proceedings re-utilises the whole or a substantial part of the contents of a database protected under Article 7, where that dedicated meta engine:
–        provides the end user with a search form which essentially offers the same range of functionality as the search form on the database site;
–        ‘translates’ queries from end users into the search engine for the database site ‘in real time’, so that all the information on that database is searched through; and
–        presents the results to the end user using the format of its website, grouping duplications together into a single block item but in an order that reflects criteria comparable to those used by the search engine of the database site concerned for presenting results."

Wednesday, 1 January 2014

Cyberlaw memes and themes for 2014

Following my hard law roundup of legislation and pending court cases in the EU/UK pipeline, here are some rather more amorphous cyberlaw themes to look out for in 2014. This is the realm of soft law, inter-government negotiations, NGOs, lobbyists, op-ed writers, bloggers and policy wonks. I have also thrown in some concrete items that were too speculative to qualify for the hard law survey.

Nudging and bludgeoning You could describe the UK government’s campaign to persuade ISPs to introduce default content filters as a variety of nudging, the idea being that a householder subscriber has to make an active selection to disable the filter. Aside from the inevitable coarseness of the filters, if this is nudging it is nudging with sharp elbows. Like many nudging ideas, changing the behavioural environment of the end user requires the co-operation, voluntary or enforced, of an intermediary. Call it what you like – private-public partnership, co-regulation, nudging, bludgeoning, backdoor armtwisting – we can expect more of it in 2014.

Magic wand politics Mention of filtering leads on to magic wand politics: the collective delusion of the governing class that the Good Fairy of the Internet can wave her magic wand and cure whatever perceived internet ill is troubling the PM and his advisers today. Steel yourselves for more in 2014.

Understanding the internet Ill-considered political interventions provoke wailing from geeky quarters that politicians don’t understand the internet. But is the problem a lack of technical knowledge, or is it a deeper failure to embrace the liberal values that we like to think are embodied in the internet? If they did understand the consequences of their actions how many politicians would care? Given what politicians have shown themselves already capable of, tremble for the day (unlikely to be in 2014) when they do understand the internet.

The Internet Wild West It is impossible to debate behaviour on the internet without somebody painting a picture of the internet as a lawless Wild West and casting themselves in the role of Sheriff come to bring order to the chaos. No matter that the internet is beset with more laws than the offline world and that many of those impose stricter rules (often inappropriately so) than offline. It is depressingly safe to predict that the Wild West meme will continue to flourish in 2014.

Doctorow’s Warning Two years ago Cory Doctorow identified "the coming war on general purpose computing". He worried about the future lobbyists who would ask:
"Can't you just make us a general-purpose computer that runs all the programs, except the ones that scare and anger us? Can't you just make us an Internet that transmits any message over any protocol between any two points, unless it upsets us?" The answer (see Magic Wand Politics) is ‘No’, but serious damage can be done in trying and failing. Doctorow again:
"Reality asserts itself. Like the nursery rhyme lady who swallows a spider to catch a fly, and has to swallow a bird to catch the spider, and a cat to catch the bird, so must these regulations, which have broad general appeal but are disastrous in their implementation. Each regulation begets a new one, aimed at shoring up its own failures." With each new round of regulation aimed at preventing wrongdoing, the greater the temptation to rectify the failure of the previous round by throwing a wider regulatory net over non-culpable actors engaged in general purpose activities. Site blocking injunctions against online intermediaries is an obvious example. Co-option of payment processors, advertising networks, domain name registrars and search engines is another, as would be action against VPN. 

These are not the only examples. Traditionally liability for wrongdoing has applied to doing, participating in and procuring wrongful acts, but stopped short of facilitating and enabling them. One reason for drawing that dividing line is that acts of facilitation and enablement are by their nature general purpose. As such, damnifying them always carries a high risk of damage to legitimate activity, whether present or future, known or unknown. There will in 2014 be continued pressure to extend all sorts of online liability and obligations to facilitation and enablement.

At a deeper level, the concern about co-opting law-abiders, facilitators and enablers represents the difference between a society in which each is free to set and pursue his or her own goals and allocate their own resources accordingly, and one in which anyone can be conscripted into an online army and commanded to crusade against the government’s designated enemy of the day.

Doctorow’s Warning is as relevant at the start of 2014 as it was two years ago.

Technological neutrality. Everyone loves technological neutrality and will appeal to it in support of whatever legal or policy position they are advocating. Laws should obviously be technologically neutral, shouldn’t they? Not necessarily. In fact resort to technological neutrality is dangerous without understanding (a) which version of technological neutrality you are invoking (b) when it is safe or appropriate to deploy it and (c) when other principles (e.g. fundamental human rights) should outweigh it. These were my slides on the topic at the Society of Legal Scholars conference in September. A full paper is in the works.

The rise of PIPCU Launched on 12 September 2013 with £2.6m of taxpayer funding over two years from the Intellectual Property Office and a special focus on offences committed online, the activities of the Police Intellectual Property Crime Unit, operated by the City of London Police, have perhaps so far attracted most attention in the pages of Torrentfreak.  With emphasis on preventative and deterrent action, including requesting suspensions from domain name registrars around the world, its activities will inevitably attract wider scrutiny. The Open Rights Group has requested a meeting with PIPCU to discuss its processes. Definitely one to watch in 2014. [PIPCU in the news already 11 Jan 2014]

Copyright wars The Piscean fishes swimming in opposite directions have nothing on the copyright wars. Historically there was pressure from rightsowner interests for stronger copyright, provoking largely reactive and patchy opposition. Now we can identify not just resistance to stronger copyright, but a coalescing agenda for digital copyright reform. In the UK the Hargreaves recommendations are going through. Ireland and Australia have completed significant reviews of copyright, with the Australian Law Reform Commission having recommended the adoption of a flexible fair use copyright exception and the Irish review a more limited version. Some EU MEPs have started to formulate an agenda for copyright reform. The courts have started to show interest in aligning digital copyright to its offline equivalent. The copyright wars will continue to be fought out in arenas such as TTIP.

Blocking injunctions In my hard law piece I mentioned the pending CJEU reference in Constantin Films v UPC. In parallel there will almost certainly be more UK applications for blocking injunctions under S97A. In practice the court normally makes a determination on the basis of evidence and submissions from rightsowners alone - a less than ideal situation. Will 2014 be the year in which some public minded body tries to intervene in an application on a quasi-amicus basis?

Privacy In a prediction at the end of 2012 for BNA I said that 2013 might be the year in which the privacy industry remembered that the state is more threatening than a cookie. And so it proved. But will we keep our eye on the ball? Will we let EU politicians turn PRISM, TEMPORA and Snowden into an excuse for an information trade war with the USA? Will they get away with suggesting that EU data protection laws have historically protected against surveillance by EU national governments? Or will we convince ourselves that it’s all the fault of US corporations for collecting data (as if Galileo should never have built a telescope)? We will find out in 2014.

See also: Internet Legal Developments to Look Out For in 2014

Sunday, 29 December 2013

Internet legal developments to look out for in 2014 (UPDATED 7 Mar 2014)

[Updated with progress as at 7 March 2014]

2013 has been a busy year for cyberlaw. But what does 2014 hold? Here are some developments in the UK and EU pipeline.

1.  Defamation Act 2013. This legislation comes into force in a few days’ time, on Wednesday 1 January 2014.   

  • It provides website operators with complete defamation immunity for identifiable third party posts and qualified protection for anonymous posts.
  • As a result of the 2009 European Court of Human Rights judgment in the Times Newspapers internet archive case we will now have a single publication rule which puts an end to rolling limitation periods for online defamation. 
  • The new ‘booksellers defence’ bars defamation actions against secondary publishers unless it is not reasonably practicable to proceed against the author, editor (if any) or commercial publisher (if any). This will include online intermediaries.  
  • There will now be a bar on proceedings against non-European defendants, unless of all places in which the statement has been published, England and Wales is clearly the most appropriate place in which to bring an action. While this is framed as a general restriction on forum-shopping, it will be especially relevant to actions founded on the mere accessibility in England and Wales of a foreign internet publication. 
The Act does not apply to Northern Ireland, nor do the provisions discussed apply to Scotland.

2. New copyright exceptions. Following the Hargreaves Report new and amended copyright exceptions are slated to come into force by 6 April 2014. These will cover archive & preservation, quotations, educational use, disabled access, private study, text and data analytics, parody and private copying (format shifting). Draft statutory instruments for all these were published for technical review during 2013. Separately, new provisions for orphan works, extended collective licensing schemes and regulation of collecting societies are in the pipeline. And don’t forget the European Commission’s Public Consultation on its review of EU copyright rules, which closes on 5 February 2014. [The copyright exceptions were intended (per the Minister in the IP Bill 2nd Reading Debate) to be laid before Parliament in February 2014 for debate under affirmative resolution procedure. It has been announced that technical changes have been made following the technical review. Amended drafts are under consideration by the legal advisers to the Joint Committee on Statutory Instruments. As soon as that process is complete, draft regulations will be published and laid before Parliament, together with 
a response to the technical review, explanatory notes, guidance and other supporting documents.] [The European Commission Consultation response date was extended until 5 March 2014 and is now closed. 11,117 submissions were received.]

3. Blocking ordersConstantin Films v UPC is pending in the CJEU. This is a case on copyright blocking orders. The Advocate General issued his Opinion on 26 November 2013. In the continuing absence of an English version, here are the Court’s Press Release and my summary of the Opinion. A judgment during 2014 is likely.

4. Copyright and linking. Three cases pending before the CJEU are about whether various types of linking can infringe the copyright communication to the public right. These are Svensson, C More Entertainment and BestWater. BestWater has been stayed pending Svensson, which appears to be heading towards judgment, probably during 2014, without the benefit of an Advocate General’s Opinion. Svensson has provoked two bodies, the European Copyright Society and the International Literary and Artistic Association (ALAI), to issue conflicting opinions on how linking issues should be decided. Also look out for Football Dataco v Stan James in the UK Supreme Court, a database right case under appeal on the question of joint liability. [Svensson judgment issued on 13 February 2014. Discussion here.][Football Dataco/Stan James appeal to be heard in June 2014.]

5. Online copyright jurisdiction. Pez Hejduk is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement.  Most likely it will regard Pinckney as having already answered the Pez Hejduk questions. Also look out for Blomqvist, a CJEU case which has online aspects concerning the territoriality of the copyright distribution right and of trade marks. [Blomqvist judgment issued on 6 February 2014. Summary here.]

6. Intermediary liability. Papasavvas, another pending CJEU reference, asks questions about the scope of the Electronic Commerce Directive provisions on internal market and intermediary liability. The internal market questions look very similar to those already answered in eDate/Martinez. Some aspects of the intermediary liability questions may provide the CJEU with an opportunity to comment on the Delfi decision of the European Court of Human Rights. [17 Feb 2014 ECHR Grand Chamber decides to refer Delfi case (i.e. hear an appeal).]

7. Copyright and temporary copies The pending NLA v PRCA reference to the CJEU should determine whether a user’s web browsing is an activity that requires the permission of the copyright owner. The UK Supreme Court thought not, but decided that the question required an EU-wide answer from the CJEU.

8. PRISM, TEMPORA, Snowden. Watch out for the legal challenges launched by various public interest groups following the Snowden revelations. These include two applications (by Liberty and Privacy International) to the Investigatory Powers Tribunal and a case taken (by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz) direct to the European Court of Human Rights. [In the latter the ECtHR has requested the UK Government to provide written observations on admissibility and merits by 2 May 2014.]

9. The saga of the Digital Economy Act 2010. The May 2013 Online Infringement of Copyright Roundtable minutes state that letters are not contemplated to start going out until ‘the latter half of 2015’. None of the necessary cost sharing statutory instruments has yet been laid before Parliament, a Treasury approval mechanism seems to be in play, and there is a General Election between now and then.  It could cost participating rightsowners collectively up to £10 million (to March 2015) in OFCOM cost sharing charges to take it forward. 

See also: Cyberlaw Memes and Themes for 2014

Friday, 29 November 2013

Everyman links to a copyright work

Everyman: I’m trying to understand copyright and linking. With three pending references to the CJEU (Svensson, C More Entertainment, BestWater) I guess we will get some clarity before too long?

Scholarly Lawyer: We’ll get decisions. Clarity would be a bonus.

E: Why is this an issue at all?  Doesn’t everyone link on the internet?

SL: Of course. Trillions of links cause no problem at all. But some copyright owners want the right to control who creates links, or at least public links, to their works.

E: Do they have any basis for that? 
SL: The main battle at the moment is around the copyright communication to the public right.  Some national courts have said that it covers some types of linking.

E: Even where the rightsholder has put the material on the internet itself?  We’re not just talking about linking to infringing copies?

SL: Communication to the public is a pretty blunt instrument. It just refers to communication to the public of ‘works’. 
E: Which could cover authorised as well as unauthorised copies?

SL: Exactly. If the right covers linking to infringing copies, on the face of it copyright owners end up with a right to control linking to material that they have put on the internet themselves.
E: Which would be absurd.

SL: Most people would think so.  Even the most devoted adherents of strong copyright tend to stop short of arguing that rightsowners should be able to control simple linking to their own material.  
E: So where do they draw the line?

SL: They tie themselves in knots trying to do it.  The reality is there is no obvious principled basis on which to distinguish legitimate from illegitimate linking within the communication to the public right – and probably no comprehensible one either.

E: But didn't Mr Justice Arnold recently distil 18 principles from the nine CJEU cases on communication to the public?

SL: Yes. A heavier burden than one sentence of any EU Directive should have to bear.
E: What about reference linking?  Isn’t that a good dividing line?
SL: No-one agrees on what reference linking is. All links have a reference function because they refer to resources on the internet.  But you are right: the International Literary and Artistic Association (ALAI) based their recent Report and Opinion on what they called reference linking.

E: How did they define it?

SL: They distinguished between a link direct to specific material protected by copyright, using its URL; and a link which “does not make a specific protected material available, but merely works as a reference to a source where it may be possible to access it and where access to the specific work itself or otherwise protected material is not achieved.”

E: A bit of a mouthful, but doesn’t that make some sense?

SL: Not really.  This is a link to the ALAI report – a PDF file. The ALAI’s position is that it needs their permission (assuming they are the copyright owner), because it is direct to specific copyright protected material using its URL. A link to a file, in other words.
E: OK then, this link is to the page containing the ALAI report. Aren’t they saying that that link shouldn’t need permission because it only refers to a source from which you can access the report?

SL:  If so, it doesn’t help. The page that you have just linked to is itself probably a copyright work. The link may be a reference link viz a viz the report, but it is a direct link to the webpage using its URL. The webpage is an HTML file.  So on the ALAI’s logic it must need the permission of the copyright owner of the web page. You still end up in the position that every link – even a link to a home page – needs permission, unless the target page is for some reason not protected by copyright.

E: Oh. What sort of other links are there?

SL: You name it.  Simple links, deep links, inline links, embedded links, framing links, aggregating links, links to infringing copies, links to downloads, links to streams.

E: But none of them involves the linking site in storing the copyright material?
SL: Correct, except where the linking code has captured a thumbnail of a target image or video. And in none of them is the linking site or link creator part of the transmission stream.  That always goes direct from the target site to the user.

E: Does that matter?

SL: The Copyright Directive talks about the right to authorise or prohibit communication to the public of the work “by wire or wireless means”. According to Recital (23) the right “should not cover any other acts”.
E: That’s why the UK copyright legislation says the communication must be "by electronic transmission"?

SL: Yes. So you would expect the right to apply to those who initiate or intervene in the actual transmission.  That’s been true of every CJEU case so far.  The furthest the CJEU has gone, in Airfield, is to include someone who provided the encryption key and decryption card that enabled a user to receive an encrypted broadcast. The CJEU said this was an intervention without which those subscribers would not be able to enjoy the works broadcast.
E: Seems a long way from linking.  Surely people can access a work on the internet whether or not someone has linked to it?

SL: If it is publicly available, yes. The European Copyright Society Opinion on Svensson leads with the transmission point.  They say “Hyperlinks are not communications because establishing a hyperlink does not amount to ‘transmission’ of a work, and such transmission is a pre-requisite for ‘communication’.”  

E: But many national courts have held that linking can be a communication to the public.  If intervention in transmission is required, how can they have done that?

SL: By taking a very broad view of intervention.  The courts have tended to consider intervention in the availability of the work generally, without really focusing on whether there was intervention in the transmission.
E: Does any of this really matter? Isn’t linking so widespread that we all have implied permission to do it?

SL: Not if there are express licence terms on the target website.  And probably not if the link is to an infringing file.  In any case implied licence doesn’t address some pretty fundamental objections to requiring permission. Is a Twitter user really supposed to access the target site and check whether there are express licence terms, and if not consider whether there might be an implied licence, before tweeting (or retweeting) a link to an item on it? And how can the tweeter tell if the siteowner is entitled to give permission? In Svensson the link was to articles licensed by a newspaper, but which the plaintiff journalists said the newspaper didn’t have their authority to license.
E: I feel a chilling effect coming on.

SL: You’d be right.
E: Didn’t Tim Berners-Lee say that a right not to be referred to pulls the rug from under free speech?

SL: Yes. And SABAM v Scarlet demonstrates that the days when copyright could sit in its own little bubble, finely dissecting the wording of copyright treaties without regard to the human rights framework around it, are long gone at least in Europe.

E: If there are international treaties, don’t we have to abide by them?
SL: Certainly, but copyright instruments are not the only international treaties to which we adhere. The European Convention on Human Rights is also an international treaty. A copyright treaty has to be interpreted in a way that is compatible with and takes into account international treaty obligations in respect of fundamental human rights.

E: Aren’t some types of linking still potentially damaging to copyright owners?

SL: Perhaps, but the communication to the public right is far too blunt an instrument to catch culpable behaviour while leaving the rest alone.  If you want to catch culpable behaviour, there are better tools such as accessory liability for someone else’s infringement.  However that is outside the CJEU’s remit as it is not harmonised across the EU.
E: Roll on Svensson.

Tuesday, 26 November 2013

Advocate General's Site Blocking Opinion in 15 tweets

Today the CJEU issued the Advocate General's Opinion in the UPC Telekabel copyright site blocking case.  The Court's official press release is here (PDF).

And here is my attempt to summarise the Opinion (doing the best I can courtesy of Google Translate, since there is no English version) in 15 tweets:

  As a reminder, these were the questions posed by the Austrian court:

1. Is Article 8(3) of Directive 2001/29/EC (the Information Directive) to be interpreted as meaning that a person who makes protected subject-matter available on the internet without the rightholder's consent (Article 3(2) of the Information Directive) is using the services of the access providers of persons seeking access to that protected subject-matter? [AG's suggested answer: Yes.]

2. If the answer to the first question is in the negative: Are reproduction for private use (Article 5(2)(b) of the Information Directive) and transient and incidental reproduction (Article 5(1) of the Information Directive) permissible only if the original of the reproduction was lawfully reproduced, distributed or made available to the public? [AG's suggested answer: N/A.]

3. If the answer to the first question or the second question is in the affirmative and an injunction is therefore to be issued against the user's access provider in accordance with Article 8(3) of the Information Directive:

Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to quite simply prohibit an access provider from allowing its customers access to a certain website (without ordering specific measures) as long as the material available on that website is provided exclusively or predominantly without the rightholder's consent, if the access provider can avoid incurring preventive penalties for breach of the prohibition by showing that it had nevertheless taken all reasonable measures? [AG's suggested answer: No.]

4. If the answer to the third question is in the negative: Is it compatible with Union law, in particular with the necessary balance between the parties' fundamental rights, to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material that is made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge? [AG's suggested answer: It can be. The national court must balance the various competing fundamental rights.]

Hat tip to Thijs van den Heuvel (@TMVDH) for Storifying my tweets.

Saturday, 2 November 2013

Everyman meets a copyright radical

(In the interests of balance: Everyman learns respect for copyright)

Everyman: Nice set of stickers you have there.
Copyright Radical: Glad you like them. Down with the Copyright Fascists!
E: Excuse me?
RadiC: Just practising. Day of Action tomorrow.
E: About copyright?
RadiC: Knowledge is a common resource. Defend the public domain. Preserve the commons.  Freedom is sharing.  Copyright enslaves us.
E: Seemed like a voluntary exchange when I paid for my books.
RadiC:  Information wants to be free.  Copyright bars the way. 
E: Information isn’t free. Movies don’t get made for nothing. 
RadiC: Free as in speech, not free as in beer. 
E: Doesn’t change anything.  Who will make movies if anyone can copy the product?
RadiC: Paintings came before copyright.
E: When mass copying was impossible.
RadiC: So when copying was expensive, the investment to do it had to be protected.  Now it costs nothing, copying has to be stopped?
E: Aren’t you ignoring public goods? 
RadiC On the contrary. Knowledge is a public good.
E: That sounds bad.
RadiC:  How so?
E: This economics textbook says that consumption of a public good is non-rivalrous and non-excludable.  So an unlimited number of people can take a free ride on the author’s creative investment.  That leads to underproduction of creative works.
RadiC: You can prove anything with economics.
E: The book says that copyright addresses the free rider problem by introducing excludability. It creates the possibility of a functioning market.
RadiC: So we end up with big business controlling knowledge. 
E: Not a dynamic marketplace of ideas?
RadiC: Don’t be ridiculous.
E: Isn’t the alternative worse?
RadiC: Knowledge as the commons. Sounds fine to me.
E: If public goods are underproduced, next thing you have the State stepping in to correct market failure.
RadiC: Collective democratic action.
E: A State-sponsored representative elite controlling the creative commons in the interest of the voter coalitions whose interests it serves.  What’s free - as in speech - about that?
RadiC: You’d rather have unaccountable monopoly US corporations?
E: What the State controls the State rations, including knowledge.  Especially knowledge.
RadiC: This is about copyright, not the State controlling speech.
E: Shouldn’t we just try to have the right amount of copyright? Not too little, not too much.
RadiC: ‘Goldilocks Copyright Now!’ Remind me to make a sticker.