One would optimistically think that certain ideas are so unrealistic that no one would ever think about them, let alone dare expressing them. However, and contrarily to one’s best hopes, as it is getting more and more usual in the ambit of protection of IP rights, it seems that there is no limits for the manifestation of the most unbelievable ideas.
Which brings us to copyright, i.e., precisely, the protection conferred upon the expression of ideas and in relation to which the most ludicrous ideas have been expressed.
A recent communication of the EU Commission on copyright reform, entitled ‘Towards a modern, more European copyright framework’ does not bring good tidings.
Apparently it is a welcome document as it aims to address the current lack of harmonization of the copyright laws in the EU. Indeed, it is unquestionable that the current EU copyright legislation requires an update. For instance, the InfoSoc Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society) intended to address a reality prior to the existence of Twitter, Youtube and Facebook. Consequently, adapting the EU copyright rules to the new online realities is of paramount importance.
However, alongside some seemingly positive approaches of the intended reform, and while it is not wordily stated in the document that the necessity of conferring copyright protection to the acts of using snippets in acts of linking, the reference to ‘rights of communication to the public’ and of ‘making available’ leaves the door opened to such interpretation.
So you can understand why this expression is relevant, Article 3 of Directive 2001/29 provides as follows:
Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Copyright holders therefore have the exclusive right over their works and are thus entitled to authorise or prohibit, with certain exceptions and limitations, the making and distribution of copies as well as communication to the public.
The scope of the concepts of “communication to the public” and of “making available” therefore determines what constitutes an act on the internet over which creators and related industries can claim copyright rights and, consequently, negotiate licences and be remunerated upon.
In the EU Commission own words:
The Commission is reflecting and consulting on the different factors around the sharing of the value created by new forms of online distribution of copyright-protected works among the various market players. The Commission will consider measures in this area by spring 2016. The objective will be to ensure that the players that contribute to generating such value have the ability to fully ascertain their rights, thus contributing to a fair allocation of this value and to the adequate remuneration of copyright-protected content for online uses.
In this context, the Commission will examine whether action is needed on the definition of the rights of ‘communication to the public’ and of ‘making available’. It will also consider whether any action specific to news aggregators is needed, including intervening on rights.
It further states that:
Rights that cannot be effectively enforced have little economic value, particularly when infringements occur on a commercial scale that free-rides on the work and investment of creators, the creative industries and legal distribution services.
This explicit reference to new regulation for news aggregators can be interpreted – and most probably is – as an intention to proceed to an ancillary copyright law.
Indeed, the copyright laws directed to news aggregators – which unquestionably led to restrictions on linking – as adopted in certain Member States (Spain and Germany, I presume) are cited as failures which carry the risk of more fragmentation in the digital single market.
Thus said, in a fact sheet, the EU Commission has clarified that it does not intend to tax links:
We have no intention to ask people to pay for copyright when they simply share a hyperlink to content protected by copyright. Europeans share and post hyperlinks every day and they should remain free to do so.
The Commission will look at the activities of different types of intermediaries in relation to copyright-protected content. This is a different issue.
News aggregators, for example, are not only using hyperlinks but also extracts of articles and may gain revenue doing so.
Different solutions related to news aggregators, both legislative and market-led, are being tested at national level. We are closely looking into them and are analysing whether they deliver on their objectives.”
So the use of snippets by news aggregators appears to tbe the cornerstone of the issue. Unfortunately, it does not come as a surprise. In fact, it sounds quite familiar. Lurid ideas as this one have been expressed – and protected too – through legislative means in some Member States, as I already addressed here.
More worryingly, they are motivated by the pressure of publishers who seem to not get over the fact that their content is promoted for free elsewhere than their websites and want to be compensated be the decrease of sales. Allegedly because others make money out of it. If doubts remain, the EU Commission confirms that it will adopt a ‘follow the money’ approach, which seems to confirm that the aim is to force search engines and news portals to pay publishing companies for linking to their content.
This seems to contradict the spirit of the Svensson ruling. The case involved a website providing its clients, according to their needs, with lists of clickable Internet links to articles published by other websites, in which the copyright holders alleged that their exclusive right to make their respective works available to the public had been infringed by the services provided.
In that context, the CJEU clarified some issues in regards of the relation between linking and copyright in the information society, ruling as follows:
1. Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in that provision.
Particularly relevant in this regard was the fact that it was interpreted that the communication at stake (making available the works concerned by means of a clickable link), despite concerning the same works as those covered by the initial communication and by the same technical means (the Internet) was not directed to a new public, meaning “a public that was not taken into account by the copyright holders when they authorized the initial communication to the public”. Consequently, such acts were deemed as not requiring the authorization of the copyright holders.
This conclusion is not altered by the circumstance that “when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site”.
However, the Court outlined that
where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation.
The ruling left many questions unanswered. Therefore the intention would not be a bad thing if it addressed the relevant unattended points and if the wrong interests would not dictate the initiative. In this context it seems that the lobby pressures are stronger that the European Parliament’s express opposition on the matter.
On the bright side, it seems that the copyright protection for links in general, which would affect end users and, ultimately the very basic premise of the Internet as we know it, characterized by the open and free communication, by the unlimited sharing of information and opinions, has been put aside.
However it is questionable what is the utility of using a link without a short extract from the linked webpage. It is a common usage on the Internet. From a practical viewpoint, if the intention actually proceeds, the immediate consequence would be that, as explicit permission from the copyright holder would be required for that purpose, any Internet users linking to freely available content for commercial purposes on the Internet could be held liable for primary copyright infringement if using those snippets. As the commercial reuse or retransmission of copyright-protected content appears to be the main motivator, and considering the new arising of new forms of businesses online, such as blogs depending on publicity, it is reasonable to fear that pretty much everyone can be affected.
Furthermore, if the system of exceptions allowing for copyright-protected works to be used, in defined circumstances, without prior authorisation from the rights holders, does not ensure the proper protection in this context, the outcome will be disastrous beyond imagination.
Thus said, the whole raison d’être of copyright laws – to produce incentive to creativeness – is completely going amiss, considering that their protection is conceded uniquely to protect businesses that refuse or are just unable to adapt their strategies to the fast-changing online reality.
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