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

[Update: the Court issued its judgment on 27 March 2014.  My assessment here.]

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.  

Everyman learns respect for copyright

(In the interests of balance: Everyman meets a copyright radical)

Maximus Copyright: Hey, you!
Everyman: Me?
MaxC: What do you think you’re doing?
E:  I’m reading this interesting little blog about IT and internet law.
MaxC: You got permission to do that?
E: Who from?
MaxC: Me.  Or the Family.
E: They are?
MaxC: Relations and neighbours.
E: Nice to meet you all.
The Family: Thief! Thief! Thief!
E: What’s this about?
MaxC: This is my patch.  You’re on it.  Pay or get off.
E: I’m only looking.
MaxC: That’s using. Needs permission. Or should do1.
E: But there are paths.  They say Public Right of Way.
MaxC: You see the TPMs?
E: I'm guessing that's the barbed wire.
MaxC: Right. Illegal to cut it.
E: Is there anything I can do around here that isn't illegal?
MaxC: You've got to learn respect. People these days don't show the respect due to the Family. How did you find this place, anyway?
E: That link. It’s marked.
MaxC: This is serious.  An unlicensed link2. Take it down, boys.
The Family: Thief! Thief! Thief!
E: Who’s that over there? You haven’t introduced her.
MaxC: Minima.  She’s the other branch of the family.  We don’t speak.
E: No?
MaxC: They have crazy ideas. Balance, proportionality, reasonable expectations of users.  "The Family will get respect if it gives up some land".  Morons.  I tell you how we get respect, by strong enforcement.
E: Not by education, then?
MaxC: Education of course.  But it has to be the right sort of education.
E: The right sort?
MaxC: The sort that fosters respect. We like to keep it simple. ‘Don’t steal, don’t copy’.  That sort of thing.  If you don’t get the message, something more graduated.  If you still don’t get it, we chop your internet off.
E: Mine?
MaxC: You just keep your nose clean and there won’t be any trouble.
E: I had my nose in this blog until you showed up.
MaxC: Don’t get clever.
E: There’s something I don’t understand about all this.
MaxC: What?
E: If everything needs permission, won't everyone end up breaking the law? How does that foster respect for copyright?
MaxC: You’re starting to sound like cousin Mini and that Hargreaves character she hangs around with.  You need to be educated.
E: How, without any internet access?
MaxC: That's enough. Re-education camp for you.
E: Huh?
MaxC: You'll love it.  The tutors all love copyright. The guards all love copyright. It will be a better world when we all love copyright.
The Family: Take him away! 


1.The question of whether merely browsing a copyright work online requires the permission of the copyright owner is currently the subject of a reference to the EU Court of Justice in Newspaper Licensing Agency v PRCA.  The view of the UK Supreme Court was that it should not require permission, in the same way that reading a physical book does not – even if the book is an infringing copy. However the browsing point was of sufficient importance that it should be considered by the CJEU.
2.  The question whether a web link to a copyright work on the internet requires the permission of the copyright owner is currently the subject of references to the EU Court of Justice in Svensson, CMore and Bestwater.