Compared to Svensson, GS Media is not that bad after all

The GS Media decision [see here and here] is under crossfire. Those who complained that the Court of Justice of the EU's (CJEU) decision in Svensson [here and here] was too liberal think that GS Media has overcome the boundaries of anarchy and made right holders' life impossible. Others are crying scandal for what GS Media will mean in terms of taking down links and endangering freedom of expression. Given the Svensson background, though, that decision is not as bad as it seems.

"A high level of protection..."

In Svensson [here and here], the Court addressed a simple question: can one link to a work that the author has uploaded on the internet? 'No doubt about it!', [almost] everyone would say. 'Yes', the Court replied, but making available includes giving access and, as linking gives access, a link is an act of "communication"/"making available" of the work. As such, linking could also become a communication to the public, under some circumstances. 

In the post-Svesson stress disorder that has been affecting the IP community [including Eleonora and this Kat, see here and here], everyone has been wondering what those circumstances might be. If the whole Svensson reasoning turns on the "public that was not taken into account by the copyright holders when they authorized the initial communication", the logical consequence seemed to be that copyright holders never take into account people accessing unauthorized works -- because they do not take into account unauthorized works, do they? Thus, an indefinite number of users accessing unlawful works are always a new public and, consequently, linking to unauthorized information always amounts to a "communication to the public". 

Accustomed to bureaucratic judgments and to the apparently unstoppable expansion of copyright's boundaries beyond what it is functional, reasonable, and enforceable, many were expecting another one of those CJEU's decisions starting with "any harmonisation of copyright and related rights must take as a basis a high level of protection..." -- and ending we know how.  

"Melchior - Way better than Bernie"

Melchior takes the floor

Then, Advocate General Melchior Wathelet took the floor. His Opinion in GS Media talks about "distinguishing", but sounds like "overruling". When it comes to linking to unauthorized contents, he noted, we should get rid of the new public criterion, or interpret it in a way that does not lead to the Svensson conclusions. Instead, the focus should be on other criteria among the many that the CJEU has pointed out while addressing communication to the public. Thus, despite differing from Svensson, linking [to infringing content] should generally not be considered communication to the public, because

"Posting of hyperlinks by users is both systematic and necessary for the current internet architecture…If users were at risk of proceedings for infringement of copyright … whenever they post a hyperlink to works freely accessible on another website, they would be much more reticent to post them, which would be to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society",

That is a problem [also] under the EU Law, continued the AG, as concluding the contrary would

"Significantly impair the functioning of the Internet and undermine one of the main objectives of Directive 2001/29, namely the development of the information society in Europe. Such an interpretation could also distort the ‘fair balance of rights and interests between the different categories of right holders, as well as between the different categories of rightholders and users of protected subject-matter."

The CJEU #feelstheWath

In GS Media, the CJEU did not entirely follow Melchior’s reasoning, nor it could have. Stating that linking to authorized content is a communication to the public while linking to unauthorized content is not would have been paradoxical -- an unprecedented overrule of a previous, recent decision on very similar facts [overruling is traditionally alien to CJEU's case law -- European never change their minds]. 

Not really the CJEU's style.

Whilst taking "linking = communication/making available" as a given fact, though, CJEU Judges definitely #feeltheWath. Overcoming the Svensson approach, GS Media's reasoning starts from an uncontested fact:

"It may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected".

A CJEU's decision that starts from reality is already kind of news. Besides, the CJEU also found a way to strike a balance among private and public interests we have not been used to by its recent decisions. The meaning and the scope of communication to the public, the Court stressed, shall be defined in light of the InfoSoc Directive's objectives, like that to

"maintain, in particular in the electronic environment, a fair balance between, on one hand, the interests of copyright holders and related rights in protecting their intellectual property rights … and, on the other, the protection of the interests and fundamental rights of users of protected objects, in particular their freedom of expression and of information".

Does it sound political? It is. As political as it has been, in some earlier decisions, leaving aside the link provider's "conscious intervention" criterion, mostly ignoring the professional or non-professional nature of the infringers, and using copyright to cover whatever one could make or use over the internet.  

GS Media and the idea of a closer copyright 

With its hands tied by Svensson's principles, the CJEU could likely have done nothing better than GS Media. Further, in GS Media the Court shows a significant change of approach. Differently from many other cases, in GS Media the Court shows its intention to descend from the Ivory Tower. It tries to get its hands dirty with the reality of things and to balance Svensson's dangerous  "linking = communication" principle with public interests and with how things actually work and always will work, either copyright provides so or not. 

GS Media is significantly closer than Svensson to what the law should be. Not a bureaucratic, unenforceable bunch of rules designed regardless of what one could reasonably expect from a community, but a careful, reasonable guide that raises from, and develops within, a given social and technological context. It is not crazy to pretend that online newspapers check whether the content they link to is authorized. By contrast, no one could ever think that private users could always check and be aware of the legal status of content they link to. A decision or piece of legislation that imposes such an obligation would have no practical consequence but a huge loss of credibility towards a law requesting something that cannot be reasonably requested. 

Laws that communities do not share and do not believe in are harder to enforce and develop badly. That is why the political approach of the GS Media decision goes beyond the mere issue of linking. By substantially limiting Svensson's consequences, GSMedia made a little step to keep copyright alive.

Linking after GS Media ... in a table

Readers may remember that a few months ago I published a table that I had prepared for my students at the University of Southampton, attempting to summarise the position of the Court of Justice of the European Union as regards linking to protected content.

Further to this week's GS Media decision [here and here], here's an updated version of my 'linking table' [check out also this useful tool prepared and shared by Martin Husovec the same day of the GS Media decision]:

Hyperlinks and communication to the public: early thoughts on the GS Media decision

As reported in this morning's (super-)breaking news post, the Court of Justice of the European Union (CJEU) has finally issued its decision in GS Media, C-160/15.

The Court held that Article 3(1) of the InfoSoc Directive "must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed."

In other words, the provision of a hyperlink on a website to a copyright work that is (1) freely accessible and (2) was published without the author’s consent on another website, does not constitute a ‘communication to the public’, as long as the person who posts that link (i) does not seek financial gain and (ii) acts without knowledge that those works have been published illegally.

This conclusion is fairly bold and, while clearly aimed at 'not breaking the internet', might not have solved all the problems created raised by Svensson [Katposts here]. Quite the contrary, it might have brought new issues into the already fantastic - yet complicated - world of the communication to the public right.

The scope of the question(s) referred

First, the Court decided to group together the three questions referred by the Dutch Supreme Court, saying that - in a nutshell - they concerned "whether, and in what possible circumstances, the fact of posting, on a website, a hyperlink to protected works, freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29." [para 25]

Moving on: notion of 'communication to the public'

As usual, the CJEU began its analysis with a general discussion of the nature [preventative] of the communication to the public right [para 28]. It mentioned the lack of a definition in the body of the InfoSoc Directive and hence the need to refer to the objectives pursued by this piece of EU legislation: high level of protection of authors [para 30] but also a fair balance of contrasting rights and interests, as also protected by the Charter of Fundamental Rights of the European Union [para 31]. 

The Court then recalled that the concept of ‘communication to the public’ includes two cumulative criteria: (1) an ‘act of communication’ of a work and (2) the communication of that work to a ‘public’. This said, it noted how a specific assessment is to be undertaken in specific instances by considering a number of complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another. 

Among other things, such criteria include:

• the indispensable role played by the user and the deliberate nature of its intervention; 
• a communication using specific technical means, different from those previously used or, failing that, to a ‘new public’; 
• the profit-making nature of the communication.

According to the Court it is in the light, in particular, of those criteria that a situation like that one at issue in the background proceedings should be assessed.

Svensson as ... Julius Caesar?

Svensson and BestWater: Tu quoque, Brute, fili mi!

Having exhausted its general overview of the communication to the public right, the CJEU turned to the most immediate and relevant decisions in the context of hyperlinks: Svensson and BestWater.

And here it said that from those cases it does not follow that "posting, on a website, hyperlinks to protected works which have been made freely available on another website, but without the consent of the copyright holders of those works, would be excluded, as a matter of principle, from the concept of ‘communication to the public’" [para 43].

Then, with quite an admirable twist [worthy of a real Brutus], it trashed scaled down the relevance of both judgments, by saying that those decisions [merely?] confirm the importance of the rightholder's consent under Article 3(1) of the InfoSoc Directive, due to the preventative nature of the communication to the public right.

However, they do not really go as far as suggesting that, lacking consent, a link would amount to an unathorised act of communication to the public. And the reasons for this scaling-down of Svensson and BestWater [which, in my opinion, indeed suggested this] are practical: to avoid 'breaking the internet'.

The Court noted in fact that:

1. the internet is of particular importance to freedom of expression and of information, and hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information [para 45]
2. it may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet. Such ascertaining is all the more difficult where those rights have been the subject of sub-licenses. Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it. [para 46]

So, how to 'save' the internet without going too far? With creativity

To overcome interpret correctly Svensson in the present context, the Court brought into 
the picture the profit-making nature criterion and also added something apparently 'Made in Luxembourg': the subjective state of mind of the hyperlinker [profit-making nature and intention appear to require cumulative consideration].

In fact, according to the CJEU [paras 47-48], "[f]or the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly [?] necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder. Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it ... does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention."

The same is not however true for:

• a person who knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet [para 49], for example owing to the fact that he was notified thereof by the copyright holders;
• Links that allow users of the website on which they are posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers [para 50]

In addition the Court adds a presumption [apparently iuris tantum, ie rebutable] that [para 51] "when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder." 

In the case at hand, GeenStijl, provided the hyperlinks for profit, yet knowing that the photos had been published without Sanoma's permision. A clear no-no scenario, concluded the Court [para 54].

A new notice-and-takedown system?

As promptly [and, in my opinion, correctly] observed on Twitter by my former student Adrian Wright, the CJEU appears also to have created a new notice-and-takedown system ... for primary liability. 

At para 53 the Court wrote that "rightholders, in all cases, have the possibility of informing such persons [who? not only those who have published the copyright work without the rightholder's consent but seemingly also those who have 'published' the hyperlinks] of the illegal nature of the publication of their work on the internet and of taking action against them if they refuse to remove that link, and those persons may not rely upon one of the exceptions listed in Article 5(3) [of the InfoSoc Directive]".

All in all: CJEU as law-maker

Much will be written on this GS Media judgment, because - as a matter of fact - it marks a departure from previous case law on the communication to the public right.

First, this is so for to the emphasis posed on the profit-making nature criterion. Not many months ago in, Reha Training [here], the CJEU (in a Grand Chamber composition) had held that, although in some cases the profit-making nature (or its lack thereof) of the act in question has been taken into account, this is not a decisive factor to classify an act as one of communication to the public. Now this no longer appears so true ...

Secondly, and possibly most importantly, the Court has seemingly carried out a de facto harmonisation of the subjective element in (primary) copyright infringement cases, thus going well beyond the wording of relevant directives. 

It would now seem that, at least in hyperlinking cases, primary copyright infringement should no longer be a matte of strict liability but rather, and similarly to the case of secondary liability, the defendant's state of mind should be considered. This may pose problems for the copyright systems of some Member States, including - at least until Brexit happens - the UK.