Sunday, 27 April 2014


The Court of Justice decision in Case 466/12, Svensson v Retriever Sverige, came just before the cut-off date for University of London exams and probably those of other institutions too, so (apart from its inherent importance) I need to alert my students to what it says. Here is a link to the press release  on the Curia website and here's the headline from it:
The owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.
The question in the case was whether there was a communication to the public when the defendant provided a hyperlink on its website to the work of the copyright owners. The Court said yes, providing a hyperlink did amount to a communication and it was to a public, but it was not a new public in the sense of being a public that had not been in the copyright owners' contemplation when they authorised the original communication to the public. (The copyright owners were journalists whose work was communicated to the public initially via a newspaper's site.)

So far so good, with one big reservation which I'll mention in a moment. The Court then considers whether it makes a difference if clicking on the link brings up the copyright work in such a manner that it appears to be on the defendant's website rather than the newspaper site where it was originally published (if I may use the word loosely). No, it says, no difference: which must also be right, as the copyright work remains the same and the context in which it appears is irrelevant to that. My only reservation about that is that the original communication was to readers of the Göteborgs-Posten, and we are now asked to equate that with communication to users of Retriever Sverige. Surely that calls into question whether the public is the same in each case? And it looks to me as if people will go to the Retriever website (assuming I have found the right one) for rather different purposes - individuals looking for news would go to the GP website, displaying a preference for that particular avowedly liberal newspaper, whereas Retriever seems to be collecting news stories for its clients (who I imagine are probably corporate) from across a wide spectrum of sources. In other words it might introduce readers of, say, Dagens Industri to stories in GP which they otherwise wouldn't read. Just like in England, a reader of the Financial Times might find his or her way to a story in The Guardian which they would not normally read, via such a website.

Then, the Court asks whether it would be different if the original website proprietor restricts access. I can't tell whether GP does - my knowledge of Swedish is quickly exhausted (utan bilen stannar Sverige, as the sticker given to me by a Swedish friend many years ago said is about the extent of it. I find to my surprise that the slogan is still in use, at, and I did spell it correctly! But say the newspaper were a notorious paywall-user, like The Times, and Retriever took you round the end of the paywall, or through a hole. Or suppose, like the FT, the paper offers visitors to the website a monthly ration of free articles, after which they have to pay for a subscription. Then, the Court says, the new readers would not be among those to whom the story was originally communicated. (My FT example is not a good one, though, because it would all depend on whether members of the group had used up their monthly ration - that would make it very complicated.)

Finally, the Court addresses the question whether Member States can make the concept of 'communication to the public' wider than it is in the Information Society directive. To which the answer is 'of course they can't', in rather more diplomatic language.

Let's go back to the Court's reasoning that there are different 'publics' to be considered. The plural form of the word does appear in the Oxford English Dictionary, but either as an abbreviated form of 'public houses' (which is not what the Court had in mind) or as sociological gobbledegook. Rather than concern ourselves with that, let's look for usages of the word 'public' in the intellectual property universe.

First, it appears in the copyright legislation. There is, for example, a definition in Part 1 of the CDPA of 'public library', and here the adjective is the opposite of 'private'. That raises interesting questions about libraries which you have to pay for, such as the London Library: could it be said to be open to the public? (Like the law courts, which are said to be open to everyone in the same way as the Ritz Hotel, in an aphorism unreliably attributed to Darling J, or LJ according to some references). But section 18 is more relevant to the present matter: the issue to the public of copies of a work is an act restricted by copyright. The fact that this is closely related to section 18 (communication to the public) suggests that this is the right place to look. And there a work is either communicated to the public, or it isn't: it's a straightforward binary thing, which doesn't require any consideration of which public. It assumes that the public is a single unitary entity. This view seems to be supported by the Court's earlier decision in Case C-5/11, Donner, in which advertising was directed to local members of the public and a delivery and payment method was made available to them amounted to issuing copies to them. In other words, the important thing seems to be that the work be issued to members of the public, which makes it unnecessary to consider whether there be in fact a plurality of publics.

Consider also the Patents Act 1977, section 2. The state of the art consists of everything that has ever been made available to the public, anywhere, anyhow (I paraphrase). 'Made available' is passive where 'issued' is active, but the notion of 'the public' is surely the same. There is no need to ask 'which public?'. Either the public has it, or it remains private. I think the Court's analysis, based as it is on there being a plurality of publics, is misguided: there is only one public, and if copies have been made available or a work has been communicated to members of it that is all that matters. There is no new public to whom the work may be made available. It might have been communicated to a limited group, not to the public (behind a paywall, perhaps, though the mere fact that it has to be paid for does not necessarily change whether it is available to the public), in which case providing hyperlinks would amount to communicating to the public, but that is very different. The directive talks about communicating to the public: to read it as if the indefinite article were used is quite wrong. And it's likely to mystify people whose native language has neither definite nor indefinite articles! К сожалению, студенты!

No comments:


blogger templates | Make Money Online