Panel 4a

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“A tale of two freedoms: examining the impact of enforcement schemes aimed at the removal of access to online copyright- and trademark-infringing content on the freedom of expression and the freedom to conduct a business.”

by Chris Garstka

Over the course of the last decade, the regulatory struggle against various types of online content infringing copyright and trademarks has matured. Maybe not in terms of strategic coherence, but definitely in terms of the presence and variety of the endorsed enforcement schemes, focused both on the infringers and on the online intermediaries. In order to effectively remove access to the two cited types of infringing content, the rightsholders came to rely on the approaches based on civil law damages, a sizeable selection of injunctions, the criminal law-based measures (fines, arrests and property seizures), the graduated response schemes, and the Digital Rights Management.

However, in the struggle for effectiveness, it should not be forgotten that such measures might oftentimes clash with certain human rights. This paper is focused on examining the former’s impact on two such rights, the freedom of expression and the freedom to conduct a business. The described objective is complemented by the discussion of the avenues through which said impact could be mitigated, with the need to strike the adequate balance between those two human rights and the right to property (which underlies the enforcement schemes in question) being kept in mind. Jurisdiction-wise, the paper relies on case law from the CJEU, the ECtHR and the UK courts.

In analysing the impact on the freedom of expression, attention is given to two principal risks; the removal of access to legitimate (or potentially legitimate) online content, and the removal of access to infrastructure which could be used for sharing such content. The analysis of the first one is conducted on the basis of scenarios in which eg. the infringement notices are processed without appropriate assessment, the filtering systems lean towards overblocking, or websites are shut down, with legitimate content still present on their servers. The discussed concern is exacerbated by the fact that apart from legitimate content of “untarnished” character, the online platforms contain digital content which might be IP-infringing, depending on whether eg. it is covered by relevant exceptions, such as fair dealing. Such content might too often be treated as if it was straight-forward infringing in nature.

The second explored risk could arise when eg. the notices of infringement are sent to indexing websites, the blocking injunctions (such as the ISP-centred ones) are endorsed (eg. see Fox v BT[1] or Cartier[2]), or the users’ Internet connections are impaired within the graduated response schemes (see the HADOPI law[3] or the Digital Economy Act 2010[4]). Additionally, the intermediaries’ freedom of expression can also be threatened, when they are not able to put in place the means for others to impart and receive information. This line of reasoning is supported by the ECtHR decisions in Neij[5]and, by cross-application, Delfi AS[6] (a defamation case). In the former, the Court asserted that “(a)rticle 10 [of the European Convention on Human Rights] applies not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information.”[7]

Analysis of the enforcement schemes’ impact on the freedom to conduct a business is centred around the burden they might place on the online intermediaries. Whether we consider the desirably “expeditious” processing of infringement notices and identification requests, the operation of preventive filtering schemes, the task of blocking access to online platforms, or assisting in the operation of graduated response schemes, it is clear that the involved intermediaries’ business activity is disrupted, to a smaller or larger extent. Such an impact was recognised and discussed eg. in the CJEU cases of Scarlet Extended,[8] Netlog[9] and UPC Telekabel,[10] all of which are given attention in this paper.

How can the impact of enforcement schemes on those two freedoms be mitigated ? Instead of attempting to rush through a list of all potential ways in which this could be achieved, the paper presents a selection of pathways, the exploration of which might draw us closer to answering this, admittedly perpetual, question.

Regarding the freedom of expression, the first proposition is to create an (initially) pan-European repository of legal knowledge for the intermediaries, geared towards assisting them in the assessment of infringement notices received, with particular attention given to factors which might be making the content in question legitimate. Secondly, the use of filtering measures entailing automatic removal of content is discouraged; in order to give due attention to freedom of expression, such measures should be used for detection only, with as much human evaluation as feasible (though the development of filtering technologies might reverse this proposal). Thirdly, the implementation of streamlined appeals procedures to removal of content should be encouraged. Fourthly, when considering the availability of alternative platforms allowing for the exchange of legitimate content, more attention should be given to the quality and variety of such resources. Finally, whenever a service is to be shut down or blocked access to, a clear notice should be given to its users, so that they have enough time to recover their files.

As for the freedom to conduct a business, the paper puts forward a rather controversial and  potentially experimental suggestion, shifting the conceptual underpinnings of intermediary liability; to part with the “blunt expectation” approach (based on imposing civil and criminal liability on the intermediaries, expecting them to tackle the infringement-related use of their service), and turn towards the “specified request” approach (based on requiring the intermediaries to implement specific procedures or elements of infrastructure, with liability arising from a failure to adhere to such requirements, as opposed to liability arising from the users’ infringing activity). Such a shift might prevent the risk of placing a potentially unlimited burden on the intermediaries, as well as facilitate their business activity by increasing legal certainty (operators of online services would know exactly what they have to do in order to avoid liability). Additionally, freedom of expression could also benefit from the specified request approach, assuming the requested procedures would be developed with this human right in mind.

[1] Twentieth Century Fox Film Corp v British Telecommunications Plc [2011] EWHC 1981 (Ch).

[2] Cartier International AG v British Sky Broadcasting Ltd [2014] EWHC 3354.

[3] Loi n°2009-669 du 12 juin 2009 favorisant la diffusion et la protection de la création sur internet (the HADOPI Law).

[4] Digital Economy Act 2010 c. 24, sections 9 and 10.

[5] Neij and Sunde Kolmisoppi v Sweden (2013) Application no. 40397/12.

[6] Delfi AS v Estonia (2013) Application no. 64569/09

[7] See fn. 5, at 9.

[8] Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) [2011].

 [9] Case C-360/10 Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) v Netlog NV [2012].

 [10] Case C-314/12 UPC Telekabel v Constantin Film [2014].

Should linking require thinking? EU Copyright law and hyperlinking

by Justin Koo

Hyperlinks have come to the forefront of EU copyright law in recent times due to the recent decisions of Svensson[1] and Bestwater[2] by the Court of Justice of the European Union (CJEU).[3] However, hyperlinks and copyright law have been wrangling for some time at the domestic level in both Member States of the EU and non-EU countries.[4] The discussion on hyperlinks in this regard has centred on whether hyperlinks should be subject to the communication to the public right? Thus, this paper will address this question in two parts. The first part will discuss the current EU position on hyperlinks, and the second part will argue that the current position is in need of change.

Before jumping into the crux of the existing EU copyright framework pertaining to hyperlinks, it is necessary to briefly describe what a hyperlink is. Unfortunately, this is something that has been taken for granted in the case law and academic literature alike.[5] For many, hyperlinks are simply the blue underlined text, for example: http://newiplawyers.wix.com/newiplawyers. This is a hyperlink in its simplest form. Simple hyperlinks can also take the form of ‘click through’ tabs and images:

pc

 [6]

These simple hyperlinks can then be separated into two distinct types, surface links and deep links. Surface links take you to the home page of a website in contrast to deep links that take you to a particular page of a website. In addition to surface and deep hyperlinks, there are also embedded hyperlinks that link data from other websites onto the webpage you are browsing. An example of an embedded link would be watching a YouTube video on facebook.[7]

Part 1 – Current EU copyright framework for addressing hyperlinks

Following Svensson, the CJEU established the manner in which hyperlinks are to be addressed by the Article 3 communication to the public right of the Information Society Directive.[8] For an act of hyperlinking to be an actionable infringement, there must be an act of ‘communication’ made to a ‘public’, and that ‘public’ must be a ‘new public’. Following this outline, it was noted that hyperlinks amount to a ‘communication’ because they make works available in a way that allow the public to access them.[9] Furthermore, the CJEU held that hyperlinks are available to a ‘public’ by virtue of being on the internet because they are available to all potential users of a website. That is to say a large and indeterminate number of people.[10] However, the CJEU reasoned that there was no actionable communication to the public because the hyperlinks did not make the works available to a ‘new public’ given that the works were already freely available on the internet.[11] Consequently, Svensson established a precedent that acts of hyperlinking are potentially actionable under EU copyright law, however, where the act of hyperlinking involves works already freely available on the internet with the author’s consent,[12] there will be no copyright liability.[13]

Part 2 – Problems with current framework

While the Svensson decision was the correct one, the reality is that it is far from satisfactory. In fact, it is subject to a number of criticisms most notably whether hyperlinks should be subject to the communication to the public right and secondly whether the ‘new public’ criterion is valid.[14]

Should hyperlinks amount to a ‘communication’?

Despite the correct finding by the CJEU in Svensson that the act of hyperlinking in question was not an actionable communication to the public, the overall decision leaves it open that hyperlinking can in the right circumstances amount to copyright infringement.[15] But, this finding is unjustifiable.[16] This is because the inclusion of hyperlinks under the scope of the communication to the public right will push the scope of the right toward an access right, which was not the intention of the legislature.[17] The making available aspect of the communication to the public right should be interpreted as requiring the provision or transmission of the work plus potential access.[18] Failing to adopt this interpretation may result in the balance of power shifting too much in favour of right holders at the expense of users and technological innovation[19] because any act facilitating the use of a work could potentially fall under the communication to the public right.[20]

Thus, simple hyperlinking should not be considered an act of ‘communication’ because it does not provide or transmit the work.[21] This claim is given impetus if one considers that a simple hyperlink can be considered analogous to footnotes[22] or instructions.[23] Hence, simple hyperlinks merely facilitate access to where the work can be found.

Is ‘new public’ valid?

Although the ‘new public’ criterion is an established part of the EU communication to the public framework, there are numerous questions about its validity. At the very base level, it was wrongfully adopted in SGAE v Rafael Hoteles[24] because the ‘new public’ criterion was expressly rejected under the Berne Convention.[25] Therefore, it can be argued that the ‘new public’ criterion should have no role to play in the development or application of the EU communication to the public right if the EU is to fulfil its international obligations under the Berne Convention as applicable through the TRIPS Agreement.[26]

The second and more specific criticism concerning the use of the ‘new public’ criterion in relation to works on the internet is that it potentially leads to the exhaustion of the communication to the public right.[27] This is the result of the Svensson decision whereby hyperlinking to works made freely available on the internet with consent cannot be subject to infringement claims. The implication of this finding is that the use of the ‘new public’ criterion on the internet is in conflict with Article 3(3) of the Information Society Directive because it states that the right of communication to the public shall not be exhausted by any prior act of communication to the public or making available.

These two criticisms necessitate the abandonment of the ‘new public’ criterion in exchange for a more compatible and justifiable governing criterion.

[1] Case C-466/12 Svensson and others v Retriever Sverige AB [2014] 3 CMLR 4

 [2] Case C-348/13 BestWater International GmbH v Mebes and Potsch [2014]

 [3] Case C-279/13 C-More Entertainment AB v Sandberg omitted as the relevant questions were withdrawn before the hearing by the CJEU.

 [4] In the UK see: Football Association Premier League Ltd v British Sky Broadcasting Ltd and others [2013] EWHC 2058 (Ch), Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others [2013] EWHC 3479 (Ch) and Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others [2014] EWHC 937 (Ch). In the international context see: BGH, judgement dated July 17, 2003 – I ZR 259/00 – Paperboy (Germany) and Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 (Australia). Also see A Strowel and V Hanley, ‘Secondary liability for copyright infringement with regard to hyperlinks’ in A Strowel (ed) Peer-To-Peer File Sharing and Secondary Liability in Copyright Law (Edward Elgar Publishing Ltd 2009) 71-109.

 [5] A Tsoutsanis, ‘Why copyright and linking can tango’ (2014) 9(6) JIPLP 495, 496-497

 [6] The parts encircled in yellow are all examples of hyperlinks.

 [7] This article focuses on simple hyperlinks unless stated otherwise.

 [8] 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 [Information Society Directive]

 [9] Svensson [2014] para 19-20

 [10] ibid paras 21-23 following Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA [2006] ECR I-11519 paras 37-38.

[11] Svensson [2014] paras 25-28.

[12] It is not entirely clear whether hyperlinking to a work placed on the internet without consent would be a communication to the public. This issue has been referred to the CJEU in Case C-160/15 GS Media.

[13] This approach was followed in Bestwater [2014].

 [14] The discussion is limited to these two issues given the word constraints of this blog article.

[15] Svensson [2014] para 31 and A Baker, ‘EU Copyright Directive: can a hyperlink be a “communication to the public”?’ (2014) Computer and Telecommunications Law Review 100, 102

[16] The arguments in this section are limited to simple hyperlinks as it might be the case that embedded links are justifiable in being considered acts of ‘communication’.

[17] See Recitals 23-25 and 27 of the Information Society Directive. The rights provided under Article 3 of the Directive are qualified in the Recitals as requiring an act of transmission. It does not protect against mere access.

[18] I Stamatoudi and P Torremans, EU Copyright Law: A Commentary (Edward Elgar Publishing Ltd 2014) 412 para 11.24 and M Ficsor, The Law of Copyright and the Internet: The 1996 WIPO Treaties, their Interpretation and Implementation (Oxford University Press 2002) 499 para C8.08

 [19] Adopting the access approach to the communication to the public right could have negative implications for other existing technologies such as cloud storage and peer-to-peer technology.

 [20] For an alternative perspective see Tsoutsanis (2014), J Ginsburg, ‘Hyperlinking and “making available”’ (2014) EIPR 147, 147 and ALAI, ‘Report and Opinion on the making available and communication to the public in the internet environment – focus on linking techniques on the Internet’ (2013) 1.

 [21] European Copyright Society, ‘Opinion on The Reference to the CJEU in Case C-461/12 Svensson’ (2013) 2, 6.

[22] J Litman, Digital Copyright (Prometheus Books 2001) 183.

[23] E Arezzo, ‘Hyperlinks and making available right in the European Union: What future for the Internet after Svensson?’ (2014) IIC 524, 539.

[24] The CJEU in SGAE v Rafael Hoteles wrongfully adopted the new public criterion given its reliance on Advocate General Sharpston’s Opinion in SGAE v Rafael Hoteles [2009], Opinion of AG Sharpston para 50. This in turn was based on the WIPO Guide to the Berne Convention (1978) 68-69 and Advocate General La Pergola’s Opinion in Case C-293/98 Entidad de Gestión de Derechos de los Productores Audiovisuales (Egeda) v Hostelería Asturiana SA (Hoasa) [2000] ECR I-629, Opinion of AG La Pergola, paras 20-26.

[25] M Walter, ‘Telediffusion and wired-distribution systems: Berne Convention and copyright legislation in Europe’ (1974) 10 Copyright 302, 303-304, R Dittrich, ‘On the interpretation of Article 11bis(1) and (2) of the Berne Convention’ (1982) 18 Copyright 294, 295-298 and M Makeen, ‘The Controversy of Simultaneous Cable Retransmission to Hotel Rooms under International and European Copyright Laws’ 57 J Copyright Soc’y USA 59, 63-64.

[26] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994, Article 9(1).

[27] Arezzo (2014) 543 and ALAI, Opinion Proposed to the Executive Committee and adapted at its meeting, 17 September 2014 on the criterion “New Public”, developed by the Court of Justice of the European Union (CJEU), put in the context of making available and communication to the public (2014) 16.

Yet another human rights conflict? Balancing between copyright and the right to take part in cultural life

by Ekaterina Sokur

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The current copyright regime comes under criticism and experiences the times of civil disobey. Critics state that IP rights, instead of promoting creativity and advancing the interest of society, generally became obstacles to innovation and cultural participation.[1] The recognition of the interface between the right to take part in cultural life and copyright allows to “bring intellectual property closer to the people again”.[2]

Being the first universally accepted international human rights treaty,[3] the Universal Declaration on Human Rights[4] revolutionary acknowledges the human rights protection of copyright.[5] Article 27(2) of the UDHR recognizes the right of everyone “to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. Despite the fact that the term “copyright” is not directly mentioned in the article, it is clear from the wording of this provision that it covers at least some “human rights attributes”[6] of copyright coming from the human rights protection of the moral and material interests of the author.

On the other hand, article 27(1) of the UDHR declares in its first paragraph everyone’s right to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Both rights seem to be interconnected, and their juxtaposition within the same articles shows the author’s right is counterbalanced by the right to take part in cultural life.[7] The International Covenant on Economic, Social and Cultural Rights similarly recognizes everyone’s right to take part in cultural life alongside with the right to benefit from the protection of the moral and material interests of the author.[8]

The wording “taking part in cultural life” is contained both in the article 27(1) of the UDHR and article 15(1)(a) of the ICESCR.  Being rather vague, it finds an attempt of its definition within the ECOSOC General Comment No. 21.[9] The Comment declares that the term “culture” embraces virtually all spheres of life, from oral and written literature, to sport, games and food.[10] According to this definition, almost every aspect of human living falls within the phrase “taking part in cultural life”, which to a certain extent equals this right with the general freedom of action (German “allgemeine Handlungsfreiheit”) and thus diminishes its weight. This definition also seems contentious, taking into account the original intent “to enable every citizen to enjoy scientific, literary and artistic works” and the elucidations of the drafters of the UDHR that creativity consists of “a purely passive aspect when man appreciates beauty and an active aspect when he creates it”.[11]

The abovementioned provisions of both the UDHR and the ICESCR were out of the academic game for a long time. Now, with the recent report of the UN Special Rapporteur in the field of cultural rights,[12] we can expect their revival. Without maintaining that copyright as a whole belongs to human rights, it is important to find out, to which extent copyright should be treated as a part of human rights system. After the determination of the proper scope of the right to take part in cultural life (now often overextended due to the broad definition of “culture”), it should also be possible to elaborate the criteria of balancing/weighing between the copyright and the right to take part in cultural life within the framework of human rights law. These balancing criteria should in turn be taken into account, when defining the scope of copyright within legislative and judiciary powers.

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[1] See Christophe Geiger, “Constitutionalising” Intellectual Property law? The influence of Fundamental Rights on Intellectual Property in the European Union, IIC 2006, 371, 372; see also Lea Shaver, Caterina Sganga, The Right to take part in Cultural Life: on Copyright and Human Rights, 27 (4) Wis. Int’l L.J. (2009) 637, 661; Reto M. Hilty, Vergütungssystem und Schrankenregelungen. Neue Herausforderungen an den Gesetzgeber, GRUR 2005, 819; Raymond Shih Ray Ku, The Creative Destruction  of Copyright: Napster and the New Economics of Digital Technology, 69 U. Chi. L. Rev. (2002), 263, 311 ff.; Lawrence Lessig, Free culture, p. 301.

 [2] Christophe Geiger, The Constitutional Dimension of Intellectual Property, in: Paul L.C. Torremans (ed.), Intellectual Property and Human Rights, p. 133.

 [3] Helfer, Laurence R. /Austin, Graeme W., Human Rights and Intellectual Property: mapping the global interface, p.7.

 [4] Universal Declaration of Human Rights, U.N. Doc. A/810 (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/

 [5] Paul L.C. Torremans, 2007 Mich. St. L. Rev, 271, 275; Peter K. Yu, 2007 Ga. St. U. L. Rev, 709, 714; Orit Fishman Afori, 2004 Fordham Intell. Prop. Media & Ent. L. J., 497, 525; Paul L.C. Torremans, Copyright (and Other Intellectual Property Rights) as a Human Right, in: Paul L.C. Torremans (ed.), Intellectual Property and Human Rights, p. 200.

 [6] Peter K. Yu, 2007 Ga. St. U. L. Rev, 709, 711.

 [7] André Kéréver, Authors’ rights are human rights, in: Copyright bulletin, Vol. XXXII, p. 23.

 [8] See ICESCR, article 15 (1a) and (1c).

 [9] Committee on Economic, Social and Cultural Rights, General comment No. 21 (Dec. 21, 2009), E/C.12/GC/21, available at www2.ohchr.org/english/bodies/cescr/docs/gc/E-C-12-GC-21.doc

[10] See General comment No. 21, paragraph 13.

 [11] See The Universal Declaration of Human Rights, The travaux préparatoires, Volume III, A/C.3/SR.151, p.2739.

 [12] See UN, General Assembly, Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed, A/HRC/28/57.