Copyright grants exclusive rights to the creators over their literary and artistic creations. Copyright grants you economic (allows you to derive financial gain from your creation) and moral rights (non-commercial aspects, such as the right to be recognized as the author) over your creations. The economic rights that are granted to the author are reproduction right, distribution right, communication to the public or transformation.
Article 3(1) of the InfoSoc Directive does not define the concept of “communication to the public”. This provision only states that EU “Member States shall provide authors with the exclusive right to authorise 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.”
Without a proper definition, the mission of establishing the requirements and determining when a situation constitutes an act of communication to the public was left to the Court of Justice of the European Union through the referral from national courts. Through consistent case law, the CJEU has established that in order for communication to the public to exist, the following requirements must be met:
- It must be an act of communication
- This communication must be directed to a new public that was not taken into account by the copyright holders when they authorised the initial communication to the public.
- The intervention is necessary, otherwise, users would not have had access to the works…
I am not going to go into details on how to interpret these criteria. Thesis have been drafted and books have been written on the subject. I do not seek to be exhaustive with this article, just highlight some of the most relevant decisions of the CJEU and their implications for you, as an online user.
So what can/can’t you do on the internet?
Placement of hyperlink to lawful content – Svensson
Retriever Sverige operates a website providing a list of clickable links to articles published by other websites. The claimants were journalists who wrote articles for the Göteborgs-Posten news website and whose articles were being linked by the Retriever Sverige website. They argued that the hyperlinks constituted an infringement of their copyright by making a communication to the public without the authors' permission
In this case, because the public targeted by the journalists' original articles were all potential visitors to the Göteborgs-Posten website and the article could be freely view and access by any internet users, the links provided by Retriever Sverige were not directed at a "new public" and there was no need to obtain the authors' consent.
However, the situation would have been different if the link permitted users to unlawfully circumvent restrictions designed to limit access (such as a paywall). In this case, the act of hyperlinking could be deemed as a communication to a new public and, therefore, infringe on the authors’ copyright.
Placement of hyperlink to unlawful third-party content – GS Media
A Dutch satirical news weblog, GeenStijl.nl, published a news article about the anonymous online leak of a Playboy photoshoot of local media personality Britt Dekker, before its official publication. Regardless of the content of the article, it also included a link to a page (FileFactory), where viewers could download a zip file containing full-quality photos of the leaked photoshoot.
In this case, the CJEU established that for-profit linkers have the responsibility to ensure that their hyperlinks do not lead to infringing content. Otherwise, they will be held liable for copyright infringement, in the same fashion as linkers posting hyperlinks knowing that they lead to infringing content.
Sale of multimedia boxes – Stichting Brein / Wullems
Mr. Wullems was selling video player hardware devices, preloaded with XBMC and Kodi software and various addons providing easy access to services offering unauthorized video content. Wullems marketed the box as enabling users to “watch everything: Unlimited access to the best films, series and sports without a subscription.”
Here the CJEU considered that because Mr.Wullems marketed a product with add-ons that specifically enable purchasers to have access to protected works published (without the consent of the copyright holders) on streaming websites, and enabled those purchasers to watch those works on their television screens, he performed an act of communication to the public.
Provision of a torrent index site – Brein / Ziggo & XS4ALL (Pirate Bay)
Everybody knows the Pirate Bay, a website that indexes and organizes all links that enables users to illegally download copyright protected work.
Here, the CJEU considered that the making available and management, on the internet, of a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network, constitutes a communication to the public.
Provision of a cloud personal video recorder service – VCAST
VCAST provides a “cloud PVR”: a web-based personal video recorder service, which allows users to record the terrestrial programmes of Italian television broadcasters.
The CJEU considered that VCAST’s service constitutes a communication to the public. Indeed, the company offers internet streams of protected television broadcasts, by using different technical means than the ones used by the original broadcaster, to an indeterminate number of customers (a new public).
Use of copied image in online school presentation – NRW / Renckhoff
In this case, a German school published on its website a presentation written by a student as part of a language workshop. The presentation included a photograph of Córdoba (Spain), taken by Mr. Renckhoff, that the student had copied from an online travel portal. Renckhoff had licensed the unrestricted publication of his photo on the travel portal, but not the further use by the school or its students.
Here a user had downloaded a photo from one website and then uploaded it to another. This technical distinction proved essential for the CJEU. If the student had embedded the photo into its presentation, it would have looked the same to the reader but, presumably, would not have constituted a new communication to the public. However, because it was essentially a new upload, the act of publication of the presentation by the school was deemed as an act of communication to the public.
These are only but a few of the cases that refers to online communication to the public. Many more are to come and many more refer to the analogue world. What should you remember?
- The concept of “communication to the public” is assessed on a case by case basis and will take into account different criteria.
- Hyperlinking, framing and embedding, are not a communication to the public if there is no new public. By new public we understand a public that was not taken into account when the copyright holder authorized the initial communication. A hyperlink to a location where the work has been made available lawfully and without restrictions is not an act of communication to the public.
- Sharing a work using different technical means from those initially used, or, if the same technical means are used, but you are communicating it to a new public, then it will constitute an act of communication to the public.
- If hyperlinks are provided for financial gain, the linker is expected to have performed the necessary checks and hence there is a refutable presumption that the linker knew that the work was unlawfully posted and is, therefore, liable for infringement.
- Where a work has been posted lawfully on a freely-accessible website, a copy of that work posted on another website is considered to reach a new public, constituitng a separate act of communication to the public.
This is far from being over. As the internet grows and as different sharing platforms appear, the concept of “communication to the public” and its interpretation is very likely to evolve. Right now, we have at least one relevant case pending before the CJEU: does an online sharing platform, such as YouTube, perform an act of communication to the public when its users upload copyright infringing content to the platform? (Case C-628/18). With the new Copyright Directive that still needs to be implemented, in particular its controversial article 17, the Court will have an important role in answering this question and interpreting it in accordance with the most recent Directive