Dirk Visser - Will EU copyright law lose all of its public?

Anti-copyright activists, who advocate for their particular vision of a totally free and open internet, often argue that certain court decisions, which they consider limit the freedom to hyperlink, mark the end of internet as they know it. On this occasion, such activists may well rejoice. If the CJEU follows the opinion of the Advocate-General of 7 April 2016 in the GS Media case (C-160/15) the anti-copyright movement can celebrate a serious impairment of copyright protection online, which will have extremely negative consequences for the legal distribution and protection of content online.

It might sound harmless and reasonable enough: “The posting on a website of a hyperlink to another website on which works protected by copyright are freely accessible to the public without the authorisation of the copyright holder does not constitute an act of communication to the public”.

But the Advocate-General goes on to say:

And he adds that “a hyperlink to another website on which works protected by copyright are freely accessible to the public, which facilitates or simplifies users’ access to the works in question, does not constitute a ‘communication to the public’ within the meaning of that provision”.

What we end up with in the GS Media case is the following:

Intentional hyperlinking to an evidently illegal source, which is impossible or very hard to find without the hyperlink, containing works that have not been made available to the public at all is not an infringement of copyright.

The Advocate-General offers some consolation

“this does not mean, however, that the copyright holder has no recourse in order to ensure that his intellectual property rights are protected and enforced”. He does admit that it is impossible to go after the anonymous uploader, but he suggests the copyright holder should go after the operator of the storage servers of the illegal source. For the AG this is a realistic solution, because in this case the illegal source was indeed (eventually) removed by the operator.

But the liability or any legal obligation of such operators or at least their susceptibility to injunctive relief, justified as they might be under certain circumstances, are no solution to the problem at hand at all. The notice and take down route may remove one particular anonymous source of clearly infringing material after some time. But it will invariably be replaced by many other illegal sources containing the same illegal material. Only by imputing a form of liability or at least injunctive relief on a provider of a hosting service which imposes a duty on him to prevent the re-uploading of the same or any other clearly infringing material will render such an approach effective. But the providers in question will argue that such a general obligation is too burdensome and not proportionate, and would therefore limit their ‘freedom to conduct a business’ and other fundamental rights, along the lines of the Scarlet/Sabam (C-70/10) and Sabam/Netlog (C-160/10) decisions.

It is important to realise that the suggestion by the Advocate-General is not only relevant for a naughty Dutch blog providing a hyperlink to some pictures of a nude blonde due to appear in the Dutch edition of Playboy Magazine.

It also applies to the most harmful platforms engaged in making available copyright protected material online such as The Pirate Bay, Popcorn time, Kino.to and the like. All these platforms are based on a ‘business model’ pursuant to which the infringing material is uploaded anonymously in places where it is hard to remove it, at least hard to remove it quickly or permanently. On the platform itself there are ‘only’ hyperlinks to those places.  Notice and takedown, where it is actually available, tends to be a joke in this context.

It is those platforms which consequently make the infringing material available to the general public in the real sense by providing, curating and indexing hyperlinks. In the same way that it was GS Media who really made the photographs available to the public. In that regard it could even be argued that GS Media itself acted as an ‘intermediary’ in the sense of Article 8(3) of the Copyright Directive and Article 11 of the Enforcement Directive. Such that it might even be susceptible to an injunction on that legal basis.

It is also very likely that GS Media’s behaviour would be adjudicated as  contrary to national  tort law or  unfair competition law.  In fact, there was and is little doubt that an injunction against GS Media was and is justified on the basis of tort law in the Netherlands. Indeed, the District Court of Amsterdam initially issued an injunction on such legal basis.

But that brings us to the core of the problem. Many (apart from some diehard anti-copyright folks) would agree that what GS Media and the pirate platforms do should be unlawful. So how can it be that  the exclusive rights provided for by copyright are not implicated?  In this scenario, copyright is hard pressed to serve its intended purpose i.e.,  to provide for exclusive rights to authorise or prohibit those acts which are harmful to the interest of the copyright holder. The act of reproduction, which is at the heart of copyright, has long ceased to be the practical basis for an exclusive right. Copies occur everywhere, many of them are harmless, inevitable or justified.

If now the other important exclusive right, the right in communication to the public, does not apply to probably the most important form of communication to the public on the internet in the form of Intentional hyperlinking to an evidently illegal source which is hard to find without the hyperlink, then this right becomes almost meaningless and potentially quite useless particularly in Member States where there are no prevalent theories of secondary liability.

It will mean that the behaviour that is the most public, the most profitable and the most harmful will not be covered by copyright. It will have to be dealt with by tort law, unfair competition law or rules on secondary liability, which are not harmonised at the European level.

It will also mean that the implied logic behind the ‘new public’ criterion as introduced by the CJEU, namely that there is an ‘original public’ which was taken into account when permission was given by the copyright holder to communicate a work to that original public, means next to nothing. In fact, it seems the AG wants to repeal this test which in any event is really meant to be about a new communication to the public rather than a communication to a new public.

If there was no permission for communication to any public, then the entire public is a new public as no public was taken into account by any previous communication to a public. If the CJEU decides to follow the AG, it will have truly lost its way among all its publics.

That would severely undermine copyright as a useful tool to take action against harmful behaviour on the internet. Then it may indeed be time for the EU legislator to act to ensure that the making available right operates in compliance with International copyright norms such that it remains a meaningful tool, not only for licensing legal services but also to combat unfair competition from  pirate sites.

That does not have to happen: the CJEU can decide to follow its own case law and ensure the continuing viability of the existing right of ‘communication to the public’ in order that it can achieve its intended purpose: to outlaw wilful and harmful acts in relation to material worth protecting, be it artistic photographs of nude blondes, music, film or any literary or artistic work.