BREAKING: Copyright, links to leaks, celebrity pics and free speech as CJEU to get a dekko at Dekker

Distinguished and genuine IP enthusiast Tobias Cohen Jehoram (De Brauw Blackstone Westbroek NV, Amsterdam), has brightened our day with some breaking news from his lovely land. It reads like this:

"In this case (in which I represent the Geen Stijl news and entertainment blog against Sanoma, publisher of Playboy in The Netherlands) Geen Stijl had received a link from an anonymous source that had posted yet unpublished pictures of Britt Dekker (a local celebrity, below left) online, which were yet to be published in Playboy. Geen Stijl reported on the leak, also placing a link to the zip file that contained the pictures. The Court of Appeal ruled that this was not copyright infringement, but that it did constitute a tort, since Geen Stijl facilitated access to the picture.

We lodged an appeal on behalf of Geen Stijl on a few grounds which was successful: the Court of Appeal had misapplied the 'quotation' exception in copyright law and did not sufficiently balance the freedom of speech versus copyright protection, as it indicated that 'only in exceptional circumstances' would the freedom of speech outweigh copyright protection, as freedom of speech concerns are taken into account in the law, in particular in the exceptions. The Supreme Court followed our reasoning that copyright is a fundamental right, but that the same goes for the freedom of speech, and that they thus should be considered on equal footing. The Court of Appeal should therefore have considered all relevant circumstances (among which is whether this is commercial speech or a news item) and not only exceptional circumstances. Never before has the freedom of speech been given so much weight in The Netherlands.

Sanoma lodged a cross appeal, in which the Supreme Court now refers questions to the Court of Justice of the European Union (CJEU). In essence, the Supreme Court struggles with the CJEU's rulings in Svensson and BestWater [possibly because the Supreme Court hasn't been reading Eleonora's Katposts on those cases here and here], indicating that it is unclear how linking to a source which is freely accessible online, but which communicates to the public without the consent of the copyright holder, should be qualified under copyright law. It adds questions, in case such linking does not constitute a copyright infringement. The Supreme Court wants to know if this is different where the source would not be easy for the average internet user to find, where putting up a link facilitates access.

These are pertinent questions that will naturally shape the legal qualification of the backbone of the internet. Unfortunately I only have the Dutch text; maybe you can make sense of it, running it through Google Translate".

Thanks, Tobias (who tells us that he jointly represented Geen Stijl with Remy Chavannes of the Brinkhof law firm in the Supreme Court phase of this litigation). The various Kats will be watching out for this reference as it wends its way to Luxembourg and back again.

Copyright enthusiasts should not miss fellow Kat Eleonora's earlier post on this same dispute, here.