EU copyright Public Consultation responses Katseries #2: linking and browsing

As reported by this very blog, yesterday afternoon the Directorate General for Internal Market and Services of the European Commission released its Report on the 9,500 responses to the Public Consultation on the Review of EU Copyright Rules [here and here]. 

The first episode of a special Katseries on the analysis of the main points of the Report was broadcast yesterday. It focused on some data about responses and respondents, and issues of cross-border access to content and more rights involved in a single act of exploitation.

It is now the turn of linking & browsing.

Linking in the aftermath of Svensson

When she saw the questions about linking and browsing and whether they should be subject to rightholders' permission, this Kat thought that any serious policy discussion around these issues would really depend on the outcome of Svensson, [here, here, here, here and here], PRCA [here] and other cases, which - at the time when the Consultation was launched - were (and some are) still pending before the Court of Justice of the European Union (CJEU). 

Svensson was however decided on 13 February last, ie a few weeks before the Public Consultation ended, so did it have had any effect on the responses? 

Merpel's favourite kind of linking

Of course it did. 

In particular end users/consumers pointed out that in its decision the CJEU did not specify whether the person who provides the link would have to check whether the website linked to had permission to make the content available to the public [well ... see here], and argued that - if this was the case - there would be too much legal uncertainty for those providing the links. 

The CJEU may shed some light on this very issue when it decides C More Entertainment. Don't be misled by the fact that the case was stayed pending Svensson and the questions read the same: it is about linking to infringing content (by means of paywall circumvention).

The vast majority of authors and performers said that in some cases [not specified in the Report though] the provision of a hyperlink to publicly available content should be subject to the authorisation of the rightholder. Some authors and performers stated that authorisation should be required for embedded or framed links within websites, since the owner of the website displaying works may generate advertising revenue by keeping the viewer on its website. This is fairly interesting, since the BestWater case (still pending) is actually about the embedding of videos. 

The vast majority of publishers, producers and broadcasters considered that the use of hyperlinks should be subject to the rightholders’ authorisation, at least in specific circumstances. However many respondents, for example commercial broadcasters and film producers, said that the question whether the provision of a hyperlink leading to work triggers the making available right should remain subject to a case-by-case assessment, also because market behaviours and technology will continue to evolve.

What about linking to newspaper content?

Readers will be aware that this is currently a matter of discussion in Europe (and elsewhere). Last year Germany introduced new sections 87f, 87g and 87h into its Copyright Act to provide for the exclusive right of press publishers to exploit their content commercially for 1 year, thus preventing search engines and news aggregators from displaying non-insignificant excerpts from newspaper articles without paying a fee. Initiatives similar to the German one were also considered - before being abandoned - by Belgium and France, and are currently being discussed in Spain [here]. Despite the criticisms expressed by the Spanish Competition Authority at the end of May when it said that initiatives like the German one might have anti-competitive effects, earlier this week proposed Spanish IP reform - including the creation of an ancillary right over news content - received its first parliamentary approval. 

According to the Report, "Newspaper and magazine publishers in particular highlight that when links to newspaper content are posted with snippets, the risk exists that readers would be diverted from reading further on the newspaper website as such. Newspaper publishers also consider that a distinction should be drawn between non-commercial and commercial uses. They consider that they may want to allow members of the public to freely view their websites for non-commercial uses while recluding (or charging a licence fee for) commercial uses." 

Time to celebrate!
They have finally linked to something
that is not protected by copyright!

Everything linked to permission? Yes, say CMOs

At the opposite side of the spectrum from intermediaries/service providers, collective management organisations held the view that "the rightholder's authorisation should be required whenever the provision of a hyperlink leads to a work or other subject matter protected by copyright". That is, says Merpel, what happens 99,98% of the time.

Browsing: PRCA was not so straightforward to academics

As regards internet browsing, end users/consumers and institutional users argued that it is akin to reading and therefore should not be subject to authorisation from the relevant rightholder, while authors and performers argued that in certain cases [the Report does not really say which though] it should be authorised. 

Besides the issue of linking (is it an act of making available to the public?), academics were also divided on browsing, with some considering that the exception in Article 5(1) of the InfoSoc Directive would not apply to this type of activity. 

Did academics see more problems with browsing than necessary? It may well be the case, since the CJEU decided PRCA with a fairly short judgment and thought there was not even need for an Opinion from one its Advocates General.