Communication to the public in Europe

Communication to the public in Europe: recent developments in EU copyright law in relation to digital media services

This paper, prepared for the 2018 AIPLA Annual Meeting in Washington, DC (slides available here), provides an introduction to the remarkable recent body of case law of the Court of Justice of the European Union (CJEU) on the author’s exclusive right of communication to the public in relation to digital media services. It places this case law in the context of purpose and setup of the CJEU’s preliminary reference procedure, and of pending EU legislative developments that will further muddy the waters for providers of digital media services.

In the last two years, the CJEU has ruled that hyperlinking to a work on a third-party website that you have reason to believe was uploaded unlawfully is a communication to the public of that work;[1] that selling fully-loaded Kodi hardware boxes is a communication to the public of the content that users view on it;[2] that torrent-indexing sites infringe copyright;[3] that offering a cloud-based personal video recorder service infringes the communication to the public right; and that publishing a school presentation containing a photo taken from a travel website requires the photographer’s permission.[4]

With its recent decisions, the CJEU has all but abandoned any notion that the author’s exclusive right to authorize “communication to the public” refers to a technically, objectively delineated set of actions that involve the actual transmission of protected works – notwithstanding the recital to the 2001 EU Copyright Directive which ostensibly limits the scope of the right to the transmission or retransmission of a work to the public not present at the place where the communication originates.[5] The Court has redefined the concept in considerably more subjective and functional terms. Indeed, one might be forgiven for concluding that the CJEU essentially considers any deliberate for-profit facilitation of access to copyright-protected information to require the rightholder’s permission.

Understanding the CJEU’s recent decisions about the communication to the public right, and identifying a broader coherence in the case law as a whole, is a challenge for practitioners both in the EU and beyond. Lawyers not familiar with EU procedural law face an additional interpretative hurdle, in that the CJEU’s role and procedures are unique and subtle. The CJEU is not a supreme court, and its role is entirely different to that of, for example, the US Supreme Court in shaping US copyright law.

Adding a further layer of complexity to EU digital copyright law, a proposed Directive on Copyright in the Digital Singe Market, currently being finalised,[6] seeks substantially to erode the safe harbour regime for online intermediaries, providing that “online content sharing service providers” bear primary liability for their users’ infringing uploads unless they install proactive copyright filters. The proposed directive will also give news publishers additional rights to restrict digital uses of their press publications, posing new challenges to the way that news is referenced and shared online. Continue reading “Communication to the public in Europe”

Balancing in EU copyright law

During the 2018 AIPPI World Congress, a panel session was held to discuss the means by which copyright laws in different jurisdictions seek to achieve balance between copyright and other rights and interests. Once mostly achieved through exceptions and limitations, recent developments show an increasing role for other doctrines and methodologies. In Europe, balancing has moved increasingly into the sphere of constitutional law. The Court of Justice of the European Union has established that the protection of copyright is a fundamental right, which must be balanced against other fundamental rights, including the freedom of expression and of information, the freedom to conduct a business, and the protection of privacy and personal data.

The situation in Mexico and the United States was addressed by Ms. Irely Aquique, and Mr. Gregory Sebald respectively.

My presentation on balancing copyright in EU law is available here. It  addresses three kinds of balancing:

  1. ‘traditional’ balancing: copyright rules designed to protect other rights and interests;
  2. ‘internal constitutional balancing’: where fundamental rights are used to interpret copyright rules, specifically when defining the scope of the exclusive right, when interpreting exceptions and limitations, when assessing the suitability of specific enforcement measures; and, possibly, when defining copyrightable subject-matter; and
  3. ‘external constitutional balancing’, where other fundamental rights operate as an autonomous limitation to copyright, outside the statutory system of exceptions and limitations, i.e. where another overriding fundamental right ‘trumps’ copyright.

Presentatie Nationale Mediarechtcongres 2017

Tijdens het Nationale Mediarechtcongres op 16 november 2017 gaf ik een presentatie over recente en toekomstige ontwikkelingen in het toezicht op commerciële en publieke mediaorganisaties, met aandacht voor o.a.

  • de distributiebutierevolutie
  • de aggregatienachtmerrie
  • toezicht op mediadiensten
  • actualiteiten reclame- en sponsorregels
  • actualiteiten dienstbaarheidsverbod publieke omroep
  • toekomstperspectief: de nieuwe AVMS-richtlijn

De presentatie is hier beschikbaar [PDF].