GS Media and its implications for the construction of the right of communication to the public within EU copyright architecture: a new article

Just a copyright-related research ...

In its 2016 decision in GS Media [Katposts here] the Court of Justice of the European Union (CJEU) sought to clarify under what conditions the provision of a link to a work protected by copyright made available on a third-party website (where it is freely accessible) without a licence from the relevant rightholder falls within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive.

In its decision the CJEU held that whether linking to unlicensed content falls within or outside the scope of Article 3(1) of the InfoSoc Directive depends – crucially – on whether the link provider has a profit-making intention or knowledge of the unlicensed character of the work linked to.

In this new article that I have written and will be published in Common Market Law Review, I attempt to assess the implications of the GS Media decision: (1) in respect of linking, and - more generally - (2) the construction of the right of communication to the public.

My main conclusions are that:

1) GS Media imposes a re-consideration of what amounts to an act of communication to the public

GS Media marks a departure or, at least, signals a re-thinking of the understanding of the right of communication in the context of linking to copyright-protected content, as first provided in Svensson [Katposts here]. 

Mindful of the importance of links to the overall functioning of the internet, as well as the need to provide an appropriate balance of different interests, the CJEU attempted to mitigate the harsh consequences that a rigorous application of Svensson would have had. 

In doing so, the court vested criteria so far only sporadically considered, eg the profit-making intention of the defendant, with a central role. It also introduced an element that in most Member States’ is not present as far as primary liability for copyright infringement is concerned, ie the knowledge by the defendant of the unlicensed character of the content linked to. 

As far as the construction of the right of communication to the public in cases other than linking is concerned, similarly to Reha Training [here], GS Media regards the ‘indispensable intervention’ of the defendant as a central element: in doing so, the CJEU appeared to construe the notion of indispensability strictly.

2) Towards a relaxation of the GS Media notion of 'indispensable intervention'?

In their (post-GS Media) Opinions in Filmspeler [here] and Ziggo [here], AG Campos Sánchez-Bordona and AG Szpunar, respectively, proposed a broader construction of the notion of ‘indispensability’. 

While the impact of Filmspeler might be somewhat reduced by the highly specific factual context from which this CJEU reference originated (multimedia players with pre-installed hyperlinks to websites that, without the authorization of the copyright holder, offer unrestricted access to copyright-protected works, eg films, series and live programmes), the implications of Ziggo promise to be more far-reaching. 

If the CJEU followed its AGs in both cases (particularly in Ziggo), then the relevance of GS Media could be scaled down, both as far as the understanding of Article 3(1) is concerned and the type of defendants that might be regarded as committing acts of communication to the public. 

In this sense, not only users, but also online intermediaries – read: hosting providers – could be regarded as primarily liable for copyright infringement in relation to user-uploaded materials that infringe third-party rights, in line with the construction of Article 13 of the draft DSM Directive as proposed by the European Commission.

3) The next big question for the right of communication to the public is not just what amounts to an act of communication to the public but also determination of who makes it

Ultimately the discussion above suggests that the concept of ‘communication to the public’ has been undergoing an evolution. 

The next frontier for Article 3(1) of the InfoSoc Directive appears to be not just a determination of what amounts to an act of communication to the public, but also who makes an act of communication to the public. 

The latter in particular is the next question for the CJEU to tackle, and also poses significant – and not entirely worked out – challenges to EU policy- and law-making.

You can access and download my piece here.