Tuesday, October 28, 2014

Practical implications of Svensson & Bestwater re IP piracy

The questions of exactly where the lines are drawn in respect of copyright infringement in the digital age have never been easy to answer. The rapid pace of technological change makes legislation put together even 10 years ago look very dated.

However the 2 judgements from the European Court of Justice in Svensson (C-466/12) and Bestwater (C-348/13) do clarify the position a bit - and not to the benefit of the content producers and rights holders. [please note the full judgment in Bestwater has not been released yet so comments below are subject to that]

In Svensson it was suggested that linking via hyperlink without permission was not a copyright infringement as on the facts of that case there was no communication to a new public.

However an important clarification;

"On the other hand, where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation."

This appeared to suggest that the copyright holder needed to have authorised the publication which is being linked to. Absent that an infringement would have occurred.

In Bestwater the embedded item was an unauthorised item on YouTube that was then embedded without permission. An example of this type of content could be viewed here for example (the automated detection systems are clearly on vacation).

Based on the above statement from Svensson it might have been expected that since the initial publication was not authorised then its subsequent hyperlinking / embedding etc was not either and therefore constituted a communication to the public.

However - the information released so far suggests re the Bestwater judgment indicates that once the content is "out there" on the web then subsequent linking or embedding represents no further infringement as there is no new communication to the public. The draft translation reads;

“The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [the EU Copyright directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication,” (courtesy: TorrentFreak)

In the fairly theoretical world of IP law this may seem perfectly logical. However at KLipcorp we are constantly monitoring the piracy landscape and the fact is that the lion's share of all live piracy is in fact embedded links from other sources that are already "out there" .

The permission of the rights holder surely has a part to play here ? If is does not then effective management of IP piracy has become more difficult as it will be necessary to show who first published the content as those who have merely linked to it or embedded it are not in breach. In the digital age this is a distinction without a difference.