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: Even where the rightsholder has put the material on the internet itself? We’re not just talking about linking to infringing copies?
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: 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: Does that matter?
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: 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: Aren’t some
types of linking still potentially damaging to copyright owners?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: But didn't Mr Justice Arnold recently distil 18 principles from the nine CJEU cases on communication to the public?
E: What about reference linking? Isn’t that a good dividing line?
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.
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.
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