Crystal ball gazing and a KATPOLL: what will be the outcome of Svensson?
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| Stop whatever you are doing: it's time to vote in the Svensson Katpoll! (Even Merpel suddenly abandoned her NY Fashion Week katwalks) |
Besides ascertaining whether it is true that Obama has been having an affair with Beyonce, there are no things that are more keenly awaited than the forthcoming judgment of the Court of Justice of the European Union (CJEU) in Case C-466/12 Svensson [here], which is due on Thursday 13 February [yep, that's this week!, screams an unusually excited Merpel].
Of the many questions of interest to copyright enthusiasts, the primary one is certainly whether providing a 'clickable link' falls within the scope of copyright protection. In particular, is a hyperlink tantamount to an act of communication to the public pursuant to Article 3(1) of the InfoSoc Directive which, as a result, requires the authorisation of the relevant copyright holder?
Question #1 in Svensson reads as follows:
"If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of 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?"
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| Linked: Yes Communicating: ? |
Readers will remember that, as a result of this reference, a heated debate as to what the NECESSARY answer to this question should be has ensued.
The principal terms of the debate may be summarised as follows.
On the one hand, the European Copyright Society [see here and here] has held the view that hyperlinking in general should be regarded as an activity that is not covered by the right to communicate the work to the public. This is because:
1. Hyperlinks are not communications because establishing a hyperlink does not amount to a "transmission" of a work, and such transmission is a pre-requisiste for "communication";
2. Even if transmission is not necessary for there to be a "communication", the rights of the copyright owner apply only to communication to the public "of the work", and whatever a hyperlink provides, it is not "of a work";
3. Even if a hyperlink is regarded as a communication of a work, it is not to a "new public".
On the other hand, the Association Littéraire et Artistique Internationale (ALAI) [see here] has held the view that providing a hyperlink may fall within the scope of the making available right, in that
· The making available right covers links that enable members of the public to access specific protected material;
· The making available right does not cover links that merely refer to a source from which a work may subsequently be accessed.
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| "I see ... I see Merpel in your future!" |
i. The content is initially made available without the rightholder’s consent, or
ii. Technical protection measures have been circumvented or
iii. The availability of the content, even if initially disclosed over the Internet with consent, otherwise clashes with the declared or clearly implied will of the rightholder. Hence, courts should not introduce a general presumption of the rightholder’s consent to further communication to the public of what initially has been posted on the Internet with the rightholder’s consent, since this would amount to introducing an exception or limitation to the right, while general exceptions to the scope of the “making available” right require legislative action.
While waiting for Thursday's judgment - inspired by a most lovely Katfriend - the IPKat has decided to seek readers' opinion as to what answer the CJEU is likely to provide to this question. In particular:
HOW WILL THE CJEU RULE ON THE LEGALITY OF HYPERLINKS?
You have time until Thursday at 8.30 am BST to cast your vote. You can do so by selecting your preferred option at the top of the IPKat left hand side bar. DO VOTE!
