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Communication to the public and the “new public” test: the Court of Justice puts its foot down in Svennson

14 February 2014

Author: Tony Ballard

The decision of the Court of Justice of the European Union (CJEU) yesterday in Svensson sets another boundary in the new European copyright regime for the distribution of content in electronic form.  Clickable links to protected works that are freely available on another website do not infringe the communication to the public right in those works.

This simple proposition rests, however, on some fairly elaborate reasoning, resolving what had appeared to be divergent trends in the case law on how the key online copyright concept of “communication to the public” (CTTP) applies to the distribution of protected works in electronic form where a service provider intervenes between the broadcaster or host on the one hand and the user on the other.  The reasoning is likely to affect fairly profoundly the development of this key concept.  Remarkably, it has been set out in just 18 paragraphs of a short judgment, unsupported by a written opinion from the Advocate-General.

The earlier case law

The problem with which the relevant case law had been wrestling arose originally in connection with broadcasting.  The Berne Convention gave authors the exclusive right not only to authorise (i) broadcasts of their work but also to authorise (ii) rebroadcasts by third parties and (iii) presentations of the original broadcast by loudspeakers and the like.  A single broadcast might therefore involve three or more different kinds of CTTP.  But some thought the Cable and Satellite Directive changed all that by eliminating (ii) and (iii) so far as CTTP by satellite was concerned.

In SGAE v Rafael Hoteles, the Court rejected such a reading of that Directive.  The case involved the distribution of satellite broadcasts to hotel guests in their rooms.  The intervention by the hotelier was held to be a type-(ii) CTTP, separate from the original broadcasts.  It was an independent act through which the broadcast works were communicated to a new public, that is to say a different public from the one at which the original broadcast was directed.  This was followed by Airfield, which involved the distribution of encrypted satellite broadcasts to a satellite package provider’s customers.  The intervention by the satellite package provider was again held to be a separate type-(ii) CTTP on the same basis.   A type-(iii) CTTP was considered in FAPL v QC Leisure, which involved the showing of satellite broadcasts on a television in a pub.  The intervention by the landlady was held to be a communication to a new public of the works comprised in the broadcasts.

Unfortunately, the Court chose to express this relatively simple Berne-based schema in wording of exceptional obscurity and in association with the novel concept of the “new public”, which attracted adverse judicial, academic and other comment.  So when in March last year it applied a new and simpler analysis in its judgment in ITV v TVCatchup and treated the earlier decisions as special cases turning on their own special facts, it looked as though those earlier decisions were being shunted off into a judicial siding.  The case involved the redistribution by an intermediary of terrestrial broadcasts on the internet.  The Court approached the question whether it was a CTTP in two steps.  First, it took the view (consistent with Berne) that each transmission or retransmission by a “specific technical means” may give rise to a separate CTTP and held that internet retransmission was a different technical means and therefore a communication.  Second, it held that it was directed at the general public.  It was a CTTP and it was not necessary to consider whether it was a new public or not.

It is clear from yesterday’s judgment in Svensson that, far from relegating the earlier cases to judicial obscurity, the Court intends to combine the reasoning in the earlier cases with that in TVCatchup.

Svensson

The question in Svensson was whether the provision by an intermediary of links to a freely accessible third party website that hosted protected works amounted to a CTTP.  In answering the question, the Court has combined all these cases into a single analytic scheme, in which the treatment of an intervention by an intermediary between a broadcaster or online host and the viewer/user depends on whether or not the intermediary uses a different “technical means” to make the protected works available to the user.  If (as in TVCatchup) an over-the-air broadcast is distributed by the intermediary on the internet – a different technical means – that distribution will be a separate CTTP if it is to the public, irrespective of whether it is a new public or not.  If, however, the protected work is made available by a host on the internet and an intermediary provides access to it by the same technical means – the internet – the provision of access will be a CTTP only if it is made to a new public.  In Svensson, the host site was freely accessible by the intermediary’s customers who could have accessed the works directly without the involvement of the intermediary.  They were therefore part of the same public as that which the host site was authorised to address.  There was no new public and therefore no CTTP on the part of the intermediary.

The Court goes on to point out that, if the host site had not been freely accessible and the links provided by the intermediary had circumvented restrictions on access, users of the link would have been treated as a new public since they were not the public which the host site was authorised to address.

The Court does not say so but it may be that one of the factors that led it to this conclusion is the principle underlying the doctrine of exhaustion of rights that a rights holder should not be entitled to additional remuneration once he has realised the full economic value of his content by putting it on the market.  The Directive expressly stipulates that the exhaustion doctrine does not apply to the communication to the public right but that has not prevented suggestions that, in the digital arena, the underlying principle should apply.  Certainly the Court has been innovative in its thinking about the CTTP.

The new boundaries

The consequences of the decision in Svensson remain to be explored.  But some online activities appear now to be permitted without authorisation by rights owners, including online linking and framing services and deep linking in relation to any freely accessible website.  That will come as a surprise and disappointment to some rights holders who might otherwise expect to control or at least earn income from the use of their material online.

But the emphatic nature of the decisions in TVCatchup and Svensson, short as they are and almost aggressively unsupported by opinions from the Advocates-General, suggests that the Court means exactly what it has said and will stick with it.

As the CTTP right gradually displaces the reproduction right as the means for rights holders to secure copyright revenues from use of their property on the internet, it is not just the boundaries of the CTTP right that are important – clarity of analysis is equally or more important to avoid doubt as to how it applies to new technologies and new business models as they emerge.  The Court has built on the three-tier model of CTTP in the Berne Convention by applying it where it where the technical means of redistribution differ and by applying a “new public” test where they do not.  Whether the “new public” test really works and, if it does, whether the Court has thereby achieved a proper balance between intermediaries and rights owners remains to be seen.

14 February 2014

 

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