Main elements of a communication to the public
According to established case-law of the CJEU, the communication to the public consists of two main elements:
- an 'act of communication', which is given if a user, in full knowledge of the consequences of what he or she is doing, gives access to a protected work: and
- a communication of that work to a 'public', which requires: (a) an act of communication directed at an indeterminate number of potential recipients and involving a fairly large number of people; and (b) that, where there is an act of communication which does not use different technical means to the original communication, it is necessary to show that the communication is to a “new public” (in other words a public that was not taken into account by the copyright holders, when they authorised the initial communication to the public)
According to the CJEU, an "individual" assessment must be made and the fundamental rights affected must also be weighed against each other.
VG Bild-Kunst
In 2014 in the cases Svensson [1] and BestWater [2] the CJEU held that supplying a hyper-link (including framing) is not an infringement of a rights holders’ “communication right”. However, it said this would only be the case where the link is to a licensed source, and only if it is available on a website, which is freely accessible by anyone (for example, not behind a paywall). In these circumstances, the Court said, there is no communication of that work to a “new public”. In other words, such links provide access to the same class of users that the copyright owner had in mind when authorising the initial communication of the work. In GS Media [3], the CJEU has subsequently clarified that, where the content linked-to has been uploaded without the copyright owner's consent, hyper-linking to that content only amounts to an infringing act if the person embedding the content knows or ought to have known about the illegal nature of the content. Knowledge will be presumed where the posting of the link is made for profit.
However, in view of the "individual" assessment, the German Federal Court had doubts as to whether framing content that has been legally made accessible should always be permissible. Framing technology makes it possible to embed content from third-party sites on one's own website in such a way that it is not apparent that the content originates from another website and thus from third parties. The German Federal Court saw this as placing an undue burden on the rights holder's ability to exploit the rights and therefore referred the question to the CJEU whether the rights holder can prevent this form of linking by technical means, so that framing in circumvention of these protective measures is an infringement of the author's rights.
The CJEU ruled in VG Bild-Kunst [4] that framing in circumvention of protective measures against such framing results in an infringement of the right of communication to the public. However, the CJEU clarified that, to ensure legal certainty for users of the internet, copyright holders cannot limit their consent by any means other than "effective technical measures" within the meaning of Art. 6 InfoSoc Directive. This means that it is not sufficient to merely notify users that framing is not permitted.
The CJEU’s reasoning was that an approach where licensing a work for the users of a single website, with restrictions on framing, resulted in third parties being able to use the work without paying a licence fee, would be inconsistent with the right holders’ inexhaustible and exclusive rights under Article 3 of the InfoSoc Directive. The ruling thus strengthens the position of rights holders, but also demonstrates the balance that must be struck between the conflicting fundamental rights.
Developments in Germany
In a decision, issued by the Regional Court of Hamburg, the defendant operated an account on the social network Pinterest to advertise its real estate brokerage activities. On this account, the defendant had added a photo of the applicant as a "re-pin" to its profile. The photo had previously been made accessible on the platform by a third party, to which the "re-pin" now linked. The Regional Court of Hamburg ruled that the re-pin would constitute a communication to the public. With the re-pin, the defendant made the work publicly available, since it provided the public with access to the work. Since the defendant acted on a commercial basis, it had to demonstrate that it had made the "necessary checks" to ensure that the linked source was made accessible lawfully. The defendant argued that it had been entitled to rely on the fact that posts on the social medium had only been made accessible lawfully by third parties because in the terms and conditions the users of the platform would grant the corresponding rights of use to the platform. Therefore, the defendant had not carried out any further checks. The Regional Court did not share this view and found that the defendant could not rely upon such a warranty in the general terms and conditions but would instead have to perform its own checks. Due to the lack of necessary checks the presumed knowledge of the unlawfulness had not been rebutted.
The Regional Court of Hamburg also affirmed the liability of the share hoster Uploaded and awarded the plaintiffs damages in the amount of 1.3 million euros plus interest. [5] However, the case was decided before the CJEU's landmark decision in Cyando (see our earlier article here). The share host operator committed an autonomous act of communication to the public because, in full knowledge of the extensive infringements by 13 intensive users, it did not block their accounts, but allowed them to continue despite three quarters of a million denial of service notices issued by the plaintiff in respect of these users.
Developments in the UK
On 26 March 2021 the UK Court of Appeal handed down its judgment in Warner Music & Sony Music v TuneIn, Inc, dismissing the appeal by TuneIn, Inc in almost all respects. The case was a UK test case on infringement of copyright by communicating works to the public by hyperlinks. It was also the first time the UK Court had to consider whether it should follow the jurisprudence of the CJEU in the area of “communication to the public” now the UK has left the EU.
TuneIn, a US technology company, operates a service where users can access radio stations broadcast around the world. In November 2019, the High Court held that, except in relation to radio stations which are already licensed in the UK, the TuneIn Inc service infringed copyright in the Warner and Sony’s sound recordings by communicating works to the public in the UK by way of its TuneIn app and website which, at a technical level, operate by indexing and providing hyperlinks to foreign radio stations to users in the UK.
TuneIn argued that its service is akin to a conventional search engine, which indexes and links to websites, and that search engines are a necessary part of the normal functioning of the internet. However, the Judge disagreed, finding that that manner and scale in which TuneIn intervened in the provision of links distinguished it from both a conventional search engine and from conventional hyper-linking on the internet. It was relevant that TuneIn provided links to audio streams as opposed to any other content (meaning the content being linked to was a continuous flow of copyright protected works). In relation to radio stations that were licensed but for countries other than the UK, the Judge said that, although the stations were freely available on the internet and could be indexed by a conventional search engine, there was a communication to a “new public” by TuneIn, because the public at which TuneIn’s service was directed (TuneIn’s UK audience) was not taken into account when the rights holder licensed the local radio station. TuneIn appealed.
The Court of Appeal dismissed the appeal by TuneIn, Inc, in all respects except in relation to liability for providing the app to UK users with the record function enabled. The Court of Appeal held that the judge at first instance was wrong to find that TuneIn was liable in relation to stations already licensed in the UK for “communication to the public” by providing the app to UK users with the record function enabled. However, the Court of Appeal agreed with the judge at first instance that TuneIn Inc would be liable for authorising infringement by the UK users and as a joint tortfeasor by providing the app to UK users with the record function enabled.
Lord Justice Arnold used the opportunity to provide a summary of the impact of the then 25 Judgments arising from references to the CJEU on communication to the public in a “tour de force” to update his earlier review last in 2013 in the Paramount [6] blocking injunction case in the Judgment. The judges were unanimous in finding that it was not necessary or desirable for the UK Court to depart from the CJEU’s jurisprudence on the right of ‘communication to the public’, following Brexit. In fact, the Court of Appeal applied the existing CJEU case law and even took into account as highly persuasive the new CJEU decision (VG Bild-Kunst) decided after the Withdrawal date of 31 December 2020. This has shown that the UK Courts are likely (for now) to be closely aligned to the EU approach in copyright, absent the UK Parliament taking deliberate steps to legislate for change.
Blocking Injunctions in the UK
In the recent case of Columbia Pictures [7], Mrs Justice Falk granted a blocking injunction against the 6 leading UK ISPs in respect of 5 target websites, who were making available vast quantities of copyright protected film and television content through links (including embedded players), including content owned by the 6 applicant movie studios. Applying the principles from Warner Music v TuneIn, above, the activities of the target sites, including enabling users to easily search for and access content and providing additional information about the movies (genre, age rating etc.), amounted to a “communication to the public”.
The Court applied GS Media observing that given that the target website operators were conducting their activities for profit, they were expected to have carried out the necessary checks to ensure that the content to which links are provided were not illegally published. Here no consent was provided by the copyright owner, nor was there a basis to imply consent, if authorisation had been provided to the work being made available to the public through a specific subscription service. The Court found that the operators of the target websites must clearly know, or at least must be taken to know, that they were providing access to works that have been placed on the internet without any such consent. The target websites were generally available to the public without charge in a manner not contemplated by the copyright owners.
This is the latest in a long line of blocking orders granted by the UK courts against ISPs, as intermediaries, to prevent further access by UK users to websites (usually not based in the UK) making available infringing content directly or indirectly through hyperlinks. Given the familiarity of the UK courts now, these applications are often dealt with as applications on paper, supported by a pack of evidence to meet the legal criteria, usually only with written submissions from the rights’ holders.
Blocking Injunctions in Germany
In Germany, in addition to the possibility of bringing claims before the courts for blocking injunctions, various rights holders have joined forces with the major Internet providers and created an out-of-court decision-making body - the CUII (Clearingstelle für Urheberrechtsverletzungen im Internet - Clearing body for Copyright Infringements in the Internet). The creation of it was welcomed by the German government, among others. In a two-stage procedure, DNS blocking injunctions of structurally copyright-infringing websites can be obtained more quickly than in court from the Internet providers involved. So far, 6 different website operators are affected by such DNS blocking injunctions, which includes a total of 30 individual domains.
Outlook
Looking at the decisions of the CJEU and developments in Germany and the UK, the trend toward granting broad protection to rights holders is apparent. The CJEU would like to see a balancing act - in order not to unduly endanger socially adequate business models. For this purpose - as is becoming increasingly clear in the case law - it makes use of the affected fundamental rights positions, between the rights of rights holders and the freedom of the internet, which must be weighed against each other. However, in cases involving aggregators in particular, what amounts to an act of “communication to the public” will be determined by the particular acts carried out by a service. This also means that cases that appear identical at first glance may well have different outcomes.
Authored by Nils Peters, Morten Petersenn, Joel Smith and Penny Thornton
[1] Svensson and Others, CJEU (case C-466/12).
[2] BestWater International, CJEU (case C-348/13).
[3] GS Media BV v Sanoma Media Netherlands BV (Case C-160/15)
[4] VG Bild-Kunst, CJEU (case C-392/19).
[5] Uploaded, Regional court of Hamburg (310 O 339/18).
[6] Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2013] EWHC 3479 (Ch)
[7] Columbia Pictures Industries Inc. & Others v. British Telecommunications PLC & Others [2021] EWHC 2799 (Ch)
