CJEU on ”New Public”

Jan RosenProfessor of Private Law

Stockholm UniversitySWEDEN

Explosive expansion of CJEU’s Copyright decisions post 2004C-302/02 (2004), British HorseracingC-306/05 (2005), Rafael HotelsC-456/06 (2006), CassinaC-275/06 (2008), TelefónicaC-52/07 (2008), Kanal 5 Ltd & TV4 AB v STIMC-240/07 (2008), Sony MusicC-304/07 (2008), DirectmediaC-545/07 (2009), LakordaC-5/08 (2009), InfopaqC-467/08 (2010), PadawanC-393/09 (2010), DatorprogramC-462/09 (2011), ThuiskopieC-403/08 & C-429/08 (2011), Premiere LeagueC-70/10 ((2011), Scarlet ExtendedC-145/10 (2011), Standard VerlagC-431/09, 432/09 (2012) AirfieldC-283/10 (2012) Circul GlobusC-135/10 (2012) Marcel Del CorsoC-162/10 (2012) Phonogramic PerformanceC-128/11 (2012) OracleC-607/11 (2013) TVCatchupC-466/12 (2014) Svensson/RetrieverC-348/13 (2014) Bestwater

C-466/12, Svensson et al. vs Retriever Sverige AB

Svensson et al.

Retriever Sverige AB

www.retriever-info.com

Retriever Norge A/SDatabase service

GP Göteborgs Posten

www.gp.se

The Public

Articles openly available at www.retriever.se?

• Retriever’s links pointed directly at copyright works published by GP on www.gp.se.

• Such material was openly available for three weeks after first upload on www.gp.se

• For material older than three weeks access only for those with log in key (subscribers).

• For the relevant period of the case Retriever’s links were active relative works of Svensson et al. - material older than three weeks - and thus (no longer) openly/unrestrictedly available on the Internet.

ALAI Opinion on linking/communication 2013.09.16 www.alai.org

(i) the act of an individual person, directly or indirectly,

(ii) with the distinct effect of addressing the public, irrespective of the tool, instrument or device that the individual has used to bring about that effect, and

(iii) elements protected by copyright or material protected by related rights thus become available to the public in a way that is encompassed by the discrete rights granted under copyright

C-466/12, Svensson(19) for there to be an ‘act of communication’, it is sufficient … that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity

(20) A provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, an ‘act of communication’

C-466/12, Svensson & C-348/12, BestWaterconclusions for linking measures

• Communication to the public: enableing/providing effect of a measure is enough – no factual transmission necessary

• Technique neutrality; standard in-line hyper links, frames, embedded measures – insignificant by what measure if the public is addressed

C-466/12, Svensson; New Public criterion

(26) The public targeted by the initial communication consisted of all potential visitors to the site concerned … all Internet users could therefore have free access to them.(27) … all the users of another site to whom the works at issue have been communicated by means of a clickable link … must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

C-466/12, Svensson; New Public criterion

(28) Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.

CJEU limits the scope of the New Public criterion in two ways:

1) the author has restricted the access to the website that initially makes available the work

2) no new public criterion applicable if the communication is made by different specific technical means

Restricted Access: limitation to the New Public criterion = A New Public addressed

Svensson at (31):(i) a clickable link that makes it possible for users to

circumvent restrictions put in place by the (initial) site on which the protected work appears

(ii) the work is no longer available to the public on the site on which it was initially communicated, or

(iii) where it is henceforth available on that site only to a restricted public while being accessible on another Internet site without authorisation of the copyright holders

Restricted access- pending issues post Svensson & BestWater

• Linking to openly accessibel work on not authorised site (a pirate copy), though available openly/with consent on another site?

• Effect of an express/declared restriction to link from an openly accessible and authorised site?

CJEU limiting the scope of the New Public criterion – ”different technical means”

C-607/11, TVCatchup, at para 26: use of a specific technical means different from that of the original communication

C-466/12, Svensson, at (27): users of links to a work posted on the (open) Internet ”must be deemed to be potential recipients of the initial communication” = ”Internet” uses are all of the same technical means.

New Public criterion – an exhaustion, ”carve out”, of the communication to the public right

- ALAI Opinion 17.09.2014

ALAI: the application of the "new public" criterion in the Svensson decision is contrary to:• Articles 11(1)(ii), 11bis(1), 11ter(1)(ii), 14(1) and 14bis(1)

of the Berne Convention• Article 8 of the WCT• Articles 2, 10, 14 and 15 of the WPPT• Article 3 of the EU Information Society Directive• previous CJEU decisions and interpretation rules of

Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

CJEU:s non-support of Svensson et al?

(25) In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.

What happened to Svensson et al.?

1. Closure of the case at the Swedish Appeal Court - Settlement between the parties (secret)

2. Retriever’s links pointed to works available at source website www.gp.se, which allowed merely a restricted access of the nature demonstrated at para (31) Svensson judgement = New Public!

3. Authors/journalist very happy with the settlement!

Macro perspective of C-466/12, Svensson

• Has the CJEU a mandate to exhaust/limit basic exclusive rights of authors without explicit support from BC, WIPO Treaties & EU directives?

• What effect for national courts or member states if CJEU decision conflicts the acquis?

• Is the CJEU’s balancing of interests, its perception of marketal needs, preserving an ”open” and accessible Internet, rational and adequate?