Why Copyright and Linking Can Tango (Article)
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Jnl. Intellectual Property Law and Practice Advance Access published April 24, 2014 Journal of Intellectual Property Law & Practice, 2014, 1 of 15 ARTICLE Why copyright and linking can tango Alexander Tsoutsanis* Making things click The author While our offline environment is all about mortar and bricks, online on the internet is all about clicks. Clicking † Alexander Tsoutsanis is an attorney admitted to away is what surfing the web is all about, everyday. Click- the Amsterdam Bar (DLA Piper) and a Senior Re- ing on buttons, windows, but often also on links: hyper- searcher and Lecturer at the Institute for Informa- links, deep links, framed links and embedded links. Yet, tion Law (IViR) of the University of Amsterdam. the legal status of linking is unclear. No less than three This article Downloaded from cases are pending before the Court of Justice of the Euro- pean Union (CJEU). The facts and questions in each † This article discusses the legal status of links, in case are different: from the admissibility of deep linking connection with the pending cases before the to news articles (Svensson), framed linking to streams of Court of Justice of the European Union in Svens- sports matches (C More), to embedded linking of a son, C More and BestWater. Hyperlinks, deep http://jiplp.oxfordjournals.org/ YouTube video (BestWater).1 The theme and questions links, framed links and embedded links are dis- are the same: does linking fall within the scope of copy- cussed. It focuses on the Opinion of the ‘Euro- right protection? And, if so, does unauthorized linking pean Copyright Society’ on the Svensson case. The constitute copyright infringement? Association litte´raire et artistique internationale Those questions have stirred much debate, following (ALAI) Opinion is also briefly discussed. an opinion from Bently and other European Copyright † This article proposes nine angles as part of the Society scholars on Svensson.2 In short, this opinion multi-factor test to determine whether linking is at DLA Piper Nederland NV on April 26, 2014 argues that ‘hyperlinking in general should be regarded as actionable under European copyright law: four an activity that is not covered by the right to communi- policy arguments (harmonization, high-level pro- cate the work to the public embodied in Article 3 of tection, technology-neutral and authorization) Directive 2001/29’.This conclusion is based on three argu- and five factors (‘making available’, ‘to the public’, ments: (a) hyperlinks do not involve ‘transmission’ and ‘new public’, ‘intervention’ and ‘profit’). such ‘transmission’ is a prerequisite for ‘communication’, (b) hyperlinks do not provide a communication ‘of a † The author concludes that properly balancing work’ and (c) hyperlinks do not involve communication those nine factors can ensure that copyright and to a ‘new public’.This gives rise to a number of concerns. linking can tango, in step with existing policy goals and case law, allowing linking in some situations, while requiring separate authorization in others. The Opinion of the European Copyright † The article was published on 3 Feb. 2014 on the Society: some concerns JIPLP blog, in advance of the CJEU’s decision on Fair or fear? Svensson. Let’s begin with the end in mind. What is the end-goal of copyright in today’s digital age? A ‘fair balance’ of rights in recital 31.3 What do we balance? The answer is in and interests between right holders and users. This recital 3: ‘fundamental principles of law and especially of follows directly from the Information Society Directive, property, including intellectual property, and freedom of * The author is not involved in any of the cases cited in this article. For 1 Case C-466/12 N Svensson and others v Retriever Sverige AB, 13 February completeness, the author discloses that he is currently acting for a right 2014; Case C-279/13 C More Entertainment AB v L Sandberg, pending; Case holder in a case pending before a lower instance court in The Netherlands C-348/13 BestWater International GmbH v M Mebes, S Potsch, pending. in which one of the issues is whether the making available of (links to) 2 L A F Bently et al, European Copyright Society, Opinion on The Reference internet streams constitutes copyright infringement. The author is grateful to the CJEU in Case C-466/12 Svensson, 15 February 2013 (‘the Opinion’). to Professors A A Quaedvlieg, J J C Kabel and J J Phillips for their Available at http://www.ivir.nl/news/European_Copyright_Society_Opinion_ comments and support. All errors and opinions are my own. on_Svensson.pdf (accessed 31 December 2013). E-mail: [email protected]. 3 Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ 2001 L 167, p 10. # The Author(s) (2014). Published by Oxford University Press. All rights reserved. doi:10.1093/jiplp/jpu024 2of15 ARTICLE Journal of Intellectual Property Law & Practice, 2014 expression and the public interest.’ In order to achieve balances above, the European Copyright Society offers such a ‘fair balance’, most intellectual property laws rely fear, by suggesting that ‘if hyperlinking is regarded as on four types of nuts and bolts to delineate the public communication to the public, all hyperlinks would need and private domain. Copyright is no exception: to be expressly licensed. In our view, that proposition is absurd’.9 However the Opinion fails to acknowledge that † First, threshold requirements: not everything we do or even if certain types of linking are considered to fall find on the web is protected under copyright. It needs under the right of ‘making available’, this does not neces- to qualify as a ‘work’, resulting from an ‘intellectual ex- sarily amount to ‘infringement’ or require a licence— pression’: articles, books, graphics, music, games and partly because such linking could benefit from one of other content all need to possess a certain amount of the exemptions in Article 5 of the Directive (eg quota- ‘creativity’ to qualify for copyright protection.4 tion) or because seeking an injunction in a particular † Secondly, defining ‘scope of protection’. IP laws case would be ‘disproportionate’. The European system usually do this by listing which ‘use’ falls under ‘exclu- of digital copyright mentioned above allows for far more sive rights’. Copyright is no different. It contains three flexibility and fairness than the Opinion tends to Downloaded from well-defined rights: (i) the right to reproduce works, suggest.10 Further, a large chunk of the content on the (ii) the right to communicate and make available to web is already made available with consent, often allow- the public and (iii) the right of distribution. Getting ing any use, even outside the platform on which the to grips with the second right is what the pending content was initially posted. Embedded linking to http://jiplp.oxfordjournals.org/ referrals before the CJEU are all about. content on YouTube is for example often based on indi- † Thirdly, limitations. Even if certain ‘use’ falls under an vidual settings allowing sharing. Users often also provide ‘exclusive right’, it only qualifies as infringement if it express consent by agreeing and marking their videos cannot benefit from statutory limitations. The Infor- with a Creative Commons BY Licence.11 This being so, it mation Society Directive contains a long list of limita- is clear that there is more to it than the gloomy scenario tions, aimed at serving public interest and freedom of painted in the Opinion. The mere fact that (some types expression in today’s digital age. Private copying, edu- of) linking would fall under the right of ‘making avail- cational and incidental use on and off the web, as well able’ does not mean that this automatically amounts to at DLA Piper Nederland NV on April 26, 2014 as use in press, citations and parody are all exempted.5 ‘infringement’. † Fourthly, principles: IP laws cannot exempt them- selves from the rule of law. Even if there is a ‘work’ for which use falls under an ‘exclusive right’ and is not One size does not fit all exempted by a ‘limitation’, this does not necessarily The Opinion basically relies on two extreme positions, mean that right holders can stop such use. According which can be summarized as (i) ‘one-size-fits-all’, (ii) to the European Court of Human Rights and the ‘communication¼transmission’. Both arguments are in- European legislator, injunctive relief is only possible if conclusive. 6 this is considered to be ‘proportionate’. Similar First, ‘one-size-fits-all’.Linking techniques on the inter- restraints also apply to seeking monetary compensa- net come in a wide range of shapes and forms, resulting tion: punitive damages are generally not imposed, at in different ways in which content is made available and 7 least not in continental Europe. the author’s economic rights are impacted. It is this system of checks and balances that European † Let’s touch on some basics first. Links are connections, copyright law is all about. Unfortunately, the European enabling access from one web resource to another. A Copyright Society puts ‘fair balance’ last, not first. It is web resource can be, eg an HTML document, such as a only mentioned on the final page of their Opinion.8 webpage, but it can also be an image, a video clip, a Instead of giving a fair account of the checks and sound bite, a program or an element within an HTML 4 See eg Case C-145/10 Painer [2011] ECR I-0000, paras 88–89. 8 Bently et al, above, n 2, para 66. 5 Directive 2001/29, above, n 3, Arts 5(2)(b), 5(3)(a), (c), (d), (i) and (k).